Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle - [2019] NSWCA 172 - NSWCA 2019 case summary — Zoe

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Fairfax Media Publications Pty Ltd v Gayle; The Age Company Pty Ltd v Gayle; The Federal Capital Press of Australia Pty Ltd v Gayle

[2019] NSWCA 172

Court of Appeal (NSW)|2019-06-06|Before: Bell P, Gleeson JA, Leeming JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2019-06-06

Before

Bell P, Gleeson JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; [1993] HCA 31 Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33 Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1949] HCA 47 Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22 Croll v McRae (1930) 30 SR (NSW) 137 Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 Daniels v State of New South Wales (No 6) [2015] NSWSC 1074 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699 Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546; [2016] VSCA 237 Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200; [1935] HCA 82 Gammage v The Queen (1969) 122 CLR 444; [1969] HCA 68 Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838 Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 Hebditch v MacIlwaine [1894] 2 QB 54 Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (2014) 42 VR 236; [2014] VSCA 3 Hunter v Sharpe (1866) 4 F & F 983; 176 ER 875 Justin v Associated Newspapers [1967] 1 NSWR 61 Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 Lachaux v Independent Print Ltd [2019] UKSC 27 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26 McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309 Merivale v Carson (1887) 20 QBD 275 Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Newling v Metlife Insurance Ltd [2019] NSWCA 149 Ng v R [2011] NSWCCA 227; 214 A Crim R 191 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46 Oneflare Pty Ltd v Chernih [2017] NSWCA 195 Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 Paterson v The Queen (2004) 28 WAR 223; [2004] WASCA 63 Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2008] VSCA 244 Reynolds v Times Newspapers Ltd [2001] 2 AC 127 Risk Allah Bey v Whitehurst (1868) 18 LT(NS) 615 Rodway v The Queen (1990) 169 CLR 515; [1990] HCA 19 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Stace v Griffith (1869) LR 2 PC 420 State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45 Taylor v Edwards [1967] 1 NSWR 689 TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632; [1934] HCA 15 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; [1966] HCA 40 Western Australia v The Commonwealth (1995) 183 CLR 373; [1995] HCA 47 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Texts Cited: J Dietrich and I Field, "Statute and Theories of Vicarious Liability" (2019) Melbourne University Law Review (forthcoming) M Gillooly, The Law of Defamation in Australia and New Zealand (The Federation Press, 1998) K Gould, "The more things change, the more they stay the same ... or do they?" (2007) 12 Media and Arts Law Review 29 J D Heydon, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) A Kenyon and S Walker, "The Cost of Losing the Code: Historical Protection of Public Debate in Australian Defamation Law" (2014) 38 Melbourne University Law Review 554 P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005) P Mitchell, "The Foundations of Australian Defamation Law" (2006) 28 Sydney Law Review 477 NSW Law Reform Commission, LRC 11, 1971 D Rolph, "The Sources of Defamation Law" in Gleeson, Watson & Peden (eds), Historical Foundations of Australian Law: Vol II (The Federation Press, 2013) P Vines and S Donald, Statutory Interpretation in Private Law (The Federation Press 2019) C Walsh, "The Defamation Act 1958 and the Common Law" (Council for Advanced Legal Studies, NSW) Category: Principal judgment Parties: Fairfax Media Publications Pty Ltd (Appellant in 2018/374470) The Age Company Pty Ltd (Appellant in 2018/374472) The Federal Capital Press of Australia Pty Ltd (Appellant in 2018/374464) Chris Gayle (Respondent in each appeal) Representation: Counsel: M J Collins QC, M Lewis (Appellants) K Smark SC, M Richardson (Respondent)

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] The appellant newspapers published a series of articles alleging that Chris Gayle, an internationally famous Jamaican cricketer, had indecently exposed himself to a team masseuse in a dressing room at a suburban oval in Sydney. Mr Gayle denied the allegation and sued the newspapers for defamation. The newspapers defended the proceedings on the grounds that the imputations complained of were true (Defamation Act 2005 (NSW), s 25), and that the publications occurred on an occasion of qualified privilege: s 30. Mr Gayle pleaded in reply that the s 30 defence was unavailable to the newspapers because the publications were actuated by malice: s 30(4). The case was tried by the Court constituted by a judge and a jury. Mr Gayle's case was that the masseuse had fabricated the allegation; the newspapers' case was that her allegation was true. Mr Gayle, the masseuse and Mr Dwayne Smith (a teammate of Mr Gayle's, who was said to be in the dressing room at the time) gave evidence and were cross-examined. The newspapers put to Mr Smith in cross-examination that he had observed the incident, and that he and Mr Gayle had then laughed about it, which he denied. The masseuse's evidence was that - contrary to what had earlier been put to Mr Smith and contrary to her written witness statement - Mr Smith had in fact been looking away at the time of the incident, and that he had thus not observed it. She gave no evidence as to laughter between Messrs Gayle and Smith. She also gave evidence that while she had told Mr Gayle that she was in the dressing room looking for a towel, she had in fact been looking for a sandwich, and that this untruth related to an eating disorder from which she suffered. Mr Gayle put to her that she had fabricated the allegation. Immediately before the closing addresses, the primary judge ruled that the element of reasonableness for the qualified privilege defence in s 30(1)(c) was a matter to be determined by the judge, not the jury. Hence, the newspapers did not address the jury on matters relevant only to reasonableness. In his closing address, however, Mr Gayle addressed on four matters which had only been particularised as relevant to the reasonableness of the newspapers' conduct. In his closing address to the jury, Mr Gayle attacked the masseuse's credibility. He said that the jury should conclude that she had lied to the newspapers by telling them that Mr Smith had observed the incident and that she had heard Messrs Gayle and Smith laughing. He also said that her falsely saying that she was looking for a towel affected her credibility and reliability, as did the fact that she suffered from anorexia and was on antidepressants at the time of the alleged incident. Immediately following Mr Gayle's closing address, the newspapers applied for the jury to be discharged. Three bases were relied upon: first, that Mr Gayle's address on malice had impermissibly extended to matters which were only particularised as relevant to reasonableness; secondly, that the attack on the masseuse's credibility and reliability included matters which had not been put to her in cross-examination (especially that she was generally unreliable due to her eating disorder), contrary to the so-called rule in Browne v Dunn; and, thirdly, that it was factually wrong to say that the masseuse must have told the newspapers that she had heard laughter, when in fact the true basis for the question about laughter was a text message from the team physiotherapist who said that he had entered the room after the incident and observed laughter. These bases were advanced individually and cumulatively. The primary judge rejected the newspapers' application. Her Honour held (1) that Mr Gayle's case on malice had expanded during the course of the trial to include the matters which had originally been pleaded as going only to reasonableness; (2) that the masseuse's credibility was clearly at issue and that Mr Gayle did not need to put every discrete basis for impugning it to her; and (3) that Mr Gayle's counsel reasonably inferred that the masseuse had been the source of the question about laughter, and that any confusion in that regard was a natural consequence of the way in which the newspapers raised the matter. Her Honour did, however, give certain directions to the jury requested by the newspapers, intending to mitigate any unfairness which had arisen. The jury returned a verdict for Mr Gayle, including a finding that the publications were actuated by malice. The primary judge awarded Mr Gayle compensatory damages of $300,000, but declined to award aggravated damages. The newspapers appealed, contending that the primary judge had erred in refusing to discharge the jury and in finding that the element of reasonableness in s 30(1)(c) is to be determined by the judge (although no challenge was made to the jury's finding that the publications were actuated by malice). Mr Gayle cross-appealed, contending that the primary judge erred in her Honour's assessment of damages. Held, by the Court, dismissing the appeals and the cross-appeals:

An application to discharge a jury involves a broad discretion on the part of the trial judge, to which the parties' relative fault may be relevant: at [1] (Bell P), [4] (Gleeson JA), [108], [113] (Leeming JA). Taylor v Edwards [1967] 1 NSWR 689; Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208; Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, considered.
Where a party alleges that a witness should be disbelieved because of multiple inconsistencies in her evidence, the rule in Browne v Dunn may not always require that each individual inconsistency be put to the witness: at [1] (Bell P), [4] (Gleeson JA), [117], [123], [127] (Leeming JA). Oneflare Pty Ltd v Chernih [2017] NSWCA 195, considered.
Where a party advances a discrete basis for disbelieving a witness, the rule in Browne v Dunn requires the party to put that basis to the witness in cross-examination: at [1] (Bell P), [4] (Gleeson JA), [121] (Leeming JA). Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226; Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15; State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47, followed.
In an application to discharge a jury, multiple discrete complaints, each insufficient of itself to warrant a discharge, may when considered cumulatively be of sufficient force to do so: at [1] (Bell P), [4] (Gleeson JA), [130]-[131] (Leeming JA). Paterson v The Queen (2004) 28 WAR 223; [2004] WASCA 63; McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309, considered.
Mr Gayle's closing address on malice went beyond the particularised case, and the primary judge erred in finding that that case expanded during the hearing. Further, what was put by Mr Gayle about the masseuse's credibility and reliability had contravened the rule in Browne v Dunn: at [1] (Bell P), [4] (Gleeson JA), [122], [137]-[138] (Leeming JA).
Consideration of the caution required of appellate courts in determining whether a trial miscarried by reason of the judge's decision not to discharge a jury: at [138]-[140] (Leeming JA). Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208; Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200; [1935] HCA 82; Justin v Associated Newspapers [1967] 1 NSWR 61, referred to.
Considering the bases of which the newspapers complained and their cumulative effect, in light of the curative effect of the primary judge's directions, her Honour's refusal to discharge the jury did not cause the trial to miscarry: at [1] (Bell P), [4] (Gleeson JA), [140]-[148] (Leeming JA).
Mr Gayle failed to identify appellable error in the primary judge's assessment of damages: at [1] (Bell P), [4] (Gleeson JA), [157], [161]-[162], [166]-[167] (Leeming JA).
Consideration of whether the element of reasonableness in the defence of qualified privilege in s 30(1)(c) of the Defamation Act is to be determined by the judge or by the jury: at [169]-[259] (Leeming JA). Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699; Daniels v State of New South Wales (No 6) [2015] NSWSC 1074; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25, considered.

[4]

Judgment

BELL P: I have had the benefit of reading the detailed reasons of Leeming JA in draft, and I agree with them and the orders his Honour proposes.
The question raised by Ground 5 of the Notice of Appeal, namely whether the question of reasonableness for the purposes of s 30(1)(c) of the Defamation Act 2005 (NSW) is a question for the judge or the jury, can be very simply stated. Its answer, however, and most regrettably, is far from clear for the reasons identified with such clarity in the judgment of Leeming JA.
The only observation that I would add, in relation to his Honour's discussion of Ground 5 (see [169]-[259] below), is that it would be far better for what is such an important practical matter to be resolved by legislative amendment rather than leaving the questions, issues and complexities properly raised by Leeming JA to be debated, inevitably upon appeal and at considerable expense to the parties involved, in a future case.
GLEESON JA: I agree with the orders proposed by Leeming JA for the reasons given by his Honour. I would add two brief comments. First, the observation at [124] applies equally to me as the other member of the Court who agreed with the passage in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40], reproduced at [123] below, which unfortunately omitted the word "not".
Second, I agree with the additional observation of Bell P at [3] concerning the desirability of legislative amendment to clarify the division of function between judge and the jury in relation to the defence of statutory qualified privilege under s 30 of the Defamation Act 2005 (NSW). I would add in this regard that to subject that question, as s 22(5)(b) does, to an anterior determination by the court of what issues "at general law" are to be determined by the judge in a defamation action and whether there is a sufficient equivalence between such issues and the issues raised by the defence of statutory qualified privilege under s 30, gives rise to unnecessary complexity and uncertainty with respect to the correct procedural process for a defamation trial. Such complexity and uncertainty is hardly conducive to the "just, quick and cheap" resolution of defamation actions, as required by the Civil Procedure Act 2005 (NSW), s 56 with respect to all proceedings.
LEEMING JA: The publishers of The Sydney Morning Herald, The Age and The Canberra Times have each appealed from judgments in the amount of $326,112 against them following a defamation trial before the court constituted by a Judge sitting in the Common Law Division and a jury of four. The trial arose out of the publication of a series of articles in early 2016 which accused the respondent, Mr Chris Gayle, a Jamaican cricketer who plays internationally for the West Indies, of exposing his genitals to a woman in a dressing room at a practice session at Drummoyne Oval.
The appeals were heard concurrently. They raise three categories of issues.
The first is whether the primary judge erred in refusing to accede to the application by the newspapers, immediately following closing address by senior counsel for Mr Gayle, that the jury be discharged. Three discrete aspects of the final address are impugned: what was put to the jury about (a) the evidence as to laughter in the dressing room (ground 1), (b) the issue of malice (ground 2) and (c) the mental state of the newspapers' main witness (ground 3). The newspapers also maintain that there was error in failing to discharge the jury by reason of the cumulative effect of those three aspects (ground 4).
The second category of issues arises on the cross-appeals brought by Mr Gayle. These concern damages. In large measure, Mr Gayle complains that the primary judge erred in failing to award aggravated damages.
The third category of issues is raised by ground 5 of each appeal. It is whether the primary judge erred in determining, immediately before final addresses, and contrary to the approach her Honour had previously taken in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074, that the question of reasonableness for the purpose of s 30(1)(c) of the Act (the Defamation Act 2005 (NSW) and its counterparts in other jurisdictions) was a question for the judicial officer, not the jury.
The largest portion of the parties' written and oral submissions, by far, was directed to the first category, relating to the discharge of the jury. In order to address the parties' submissions and resolve these grounds, there is no alternative but to provide a detailed summary of the trial. It should be stated that the Court was assisted by the succinct and efficient written and oral submissions made by Dr Collins QC and Mr Lewis, who appeared for the newspapers, and Mr Smark SC and Mr Richardson, who appeared for Mr Gayle. These enabled a relatively large appeal to be heard in a single day. All counsel save for Mr Smark had appeared at trial. Mr Smark's predecessor, who conducted the trial on behalf of Mr Gayle leading Mr Richardson, was Mr McClintock SC.
The balance of these reasons is arranged as follows: The pleadings 13 The trial 20 Overview of the trial 20 The parties' openings 23 The evidence of Mr Gayle, Mr Smith and Ms Russell concerning laughter (ground 1) 28 Ms Russell's mental state (ground 3) 49 Mr McClintock's address as to malice (ground 2) 56 The reasons of the primary judge 75 The explanation given on 30 October 2017 77 The reasons contained in the judgment 81 Consideration of grounds 1-4 91 Inconsistencies between the reasons and what was said on 30 October 2017? 94 The relevance of fault 106 Mr Gayle's non-compliance with the rule in Browne v Dunn 114 The test as stated in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40] 123 The failure to have regard to the cumulative effect 129 Failure to deal with submissions on malice 132 Should the jury have been discharged? 138 Mr Gayle's Cross-Appeal 150 Reasons of the primary judge 151 Ground 5 - error in failing to infer hurt suffered by Mr Gayle 157 Ground 6 - error in discounting the indicative damages awards? 159 Grounds 1-4 163 Ground 5 of the appeal 169 Should this ground be determined at all? 174 The reasons of the primary judge 179 The functions of judge and jury 184 The defence created by s 30 190 Qualified privilege at common law in Australia 196 References to the "general law" in the Defamation Act 206 Matters "traditionally reserved" for the judge? 209 Herald and Weekly Times Ltd v Popovic 214 The creation of the Lange defence and the references to reasonableness 223 Conclusion on ground 5 249 Orders 261 Annexure "A" 263

[5]

The pleadings

In early January 2016, the newspapers published a series of articles in print and online concerning Mr Gayle. Their titles included, among others, "Gayle exposed himself to me, claims woman", "Chris Gayle faces expulsion from Big Bash as officials probe claims he exposed himself to woman", "Gayle to sue over indecent exposure allegation" and "Team email confirms West Indies management knew of misbehaviour towards woman". Those titles sufficiently summarise the content. The newspapers accepted that the articles were defamatory of Mr Gayle, and conveyed that he had intentionally exposed his genitals to a woman, had indecently propositioned a woman and had indecently exposed himself to a woman, in the West Indies team dressing room at Drummoyne Oval during the lead-up to the 2015 Cricket World Cup.
The newspapers defended the proceedings on the bases of ss 25 and 30 of the Act, on the grounds that each imputation was substantially true, and each publication took place on an occasion of qualified privilege.
The defence contained detailed particulars of truth and qualified privilege. The particulars of truth referred to a female massage therapist who had been retained by the West Indies Cricket Board to provide massage services to the team players including Mr Gayle. The defence identified her as "Person A"; she was Ms Leanne Gaye Russell. The particulars stated that on or about 12 February 2015, during a training session at a cricket ground in Drummoyne, whilst the majority of players were on the field, Mr Gayle and another cricketer, Mr Dwayne Smith, were in the dressing room. Mr Gayle was wrapped in a towel. The particulars continued: "A conversation took place in substance as follows: Plaintiff: 'What are you looking for?' Person A: 'A towel.' Plaintiff: 'Are you looking for this?' Person A: 'No.' As the plaintiff asked Person A 'Are you looking for this?', the plaintiff pulled his towel out and down and partially exposed his penis to Person A. As Person A said 'No', she put her hand up to the plaintiff and walked out of the dressing room."
The particulars of qualified privilege reflected the fact that the newspapers bore the burden of establishing that the publication was reasonable in the circumstances. An extensive particularisation of the reasonableness of the newspapers' conduct was provided. It is reproduced as annexure "A" to these reasons. It included that the matters complained of were in the public interest, that the newspapers were reasonably satisfied of the integrity of the information on which they were based and had taken steps to verify those matters and that they had invited Mr Gayle's manager to comment and fairly reported his comment. Very extensive particulars of the steps taken by Ms Chloe Saltau (the journalist whom Ms Russell had originally contacted) and Mr Chris Barrett to verify the publications were provided.
Mr Gayle filed a relatively short reply which, save in one respect, merely joined issue with the defence. The exception was that in answer to the defence of qualified privilege, Mr Gayle said that the publication was actuated by malice. Mr Gayle's reply gave the following particulars of malice: "(a) the reckless indifference of the Defendant in publishing the allegations as against the Plaintiff in that it published those allegations without contacting, or attempting to contact, the only other alleged witness to the allegations as particularised in paragraph 23.6 of the Defence, being Dwayne Smith; (b) the reckless indifference of the Defendant in pleading substantial truth in its Defence filed in these proceedings without contacting, or attempting to contact, the only other alleged witness to the allegations as particularised in paragraph 23.6 of the Defence, being Dwayne Smith; (c) the reliance by the Defendant on a witness of no credit in support of its allegations published, and continuing to be published, as against the Plaintiff: (i) in each of the First, Second, Third, Fourth, Eighth and Ninth Matters Complained Of the Defendant alleged that the woman to whom the Plaintiff had allegedly exposed his genitals (the Source) had first entered the Plaintiff's dressing room to 'get a sandwich as she had not eaten all day', or 'get a sandwich', or was 'looking for a sandwich as she had not eaten all day'; (ii) in paragraph 23.6 of the Defence, the Defendant makes a fresh claim in which the Source abandons her prior version and now asserts that she had entered the Plaintiff's dressing room 'looking for a towel'; (iii) in the premises, the changed version of events by the Source to the Defendant's knowledge renders her as a witness of no credit who has fabricated the allegations against the Plaintiff and is an unreliable witness; (iv) despite the matters referred to in paragraphs (i)-(iii), the Defendant: A. continues to publish online the original version of the Source's allegations as specified in (i) above despite those versions now having been abandoned by the Defendant in its Defence; B. continues to publish online in the Sixth and Seventh Matters Complained Of statements that it 'stands by the story'; (d) by reason of the matters stated above, the Defendant was and is aware that the Plaintiff's imputations particularised in the proceedings were false; (e) in the alternative to (d), by reason of the matters set out in paragraphs (a)-(c) above, the Defendant was and is recklessly indifferent to the truth or falsity of the Plaintiff's imputations particularised in the proceedings, such that it was and is wilfully blind to the truth or falsity of those imputations."
It may be helpful at this stage to note the following matters: 1. The defence of truth proceeded on the basis that three people were in the players' dressing room at the relevant time: Mr Gayle, Ms Russell and Mr Smith. 2. The alleged failure on the part of the newspapers to attempt to contact Mr Smith was the subject of the first and second particulars relied upon by Mr Gayle for malice. 3. Mr Gayle's third particular of malice identified an inconsistency in Ms Russell's account, relating to whether she had entered the dressing room to get a sandwich, or else was looking for a towel. 4. The particulars of malice alleged that her "changed version of events" was such as to render her "a witness of no credit who has fabricated the allegations against the plaintiff and is an unreliable witness". 5. The particulars of malice relied on by Mr Gayle were much more confined than the particulars of reasonableness relied on by the newspapers.
At some stage prior to trial, interrogatories were administered and answered. One was ultimately tendered: "Did the Defendant by publishing the matters complained of (or any of them) intend to damage the reputation of the Plaintiff? [Answer:] Yes."

[7]

The parties' openings

At the outset of the trial, and in the absence of the jury, Mr Gayle advised that he would be submitting that the decision of the primary judge in Daniels was wrong and that it was a matter for the judge to determine qualified privilege including the issue of reasonableness. However, counsel advised that the issue did not need to be addressed yet on the basis that: "I'm going to open on malice and I'm going to leave it perhaps a little vague in relation to exactly what they are doing in relation to reasonableness". Her Honour advised that she had formed the view that she needed to "rethink this carefully" such that "if we can keep it out of the opening that's the best approach".
After hearing from both parties her Honour advised: "It's not going to be an easy question to decide. I don't think I need to decide it now so if you would just open sort of more or less in a general way."
The jury was empanelled and the primary judge introduced the issues, including the defence of qualified privilege in a general way. Counsel for Mr Gayle opened, briefly, emphasising the interrogatory reproduced above. Counsel stated that Ms Russell had come forward and provided a story to a journalist, and then said of Ms Russell: "She's given a number of different versions of what actually happened, which I'll be asking her about when she gets in the witness box." Counsel also stated that the newspapers knew there was a witness, a third person, Mr Dwayne Smith, and then anticipated the submissions he would be making at the end of the case concerning the failure to attempt to contact Mr Smith: "They didn't make any attempt and this is the reason why I say that they were reckless or one of them was reckless they didn't make any attempt to contact that player. I am going to say to you at the end of this case that that's a disgraceful breach, that the duties of what journalists should do. You see, members of the jury, I don't want to get ahead of myself, but part of this case is going to be whether the journalists here did their job properly and honestly and I'm going to be saying to you at the end of the case that they did it dishonestly, that they acted maliciously. I will explain what that means, but think of this, members of the jury, I don't believe there will be any dispute about this from them, from the defendants, they're told by a woman that my client exposed his genitals. They know that there was a witness present. Do they contact the witness to find out what he would say? No, they don't, yet they go ahead and publish, members of the jury."
As had been flagged in the absence of the jury, counsel touched upon the question of reasonableness only lightly, and, in the passage reproduced below, returned to the question of malice: "The second issue of those group of issues you will be deciding - and the evidence of this will come largely, I suspect, from the journalists themselves when they give their evidence but it involves the defendants' conduct and it is how - the issue of how they went creating the story, what they did, how they set out creating this work of fiction, because that's what it is. My submission as I said to you a little while ago, is that at the end of the case, I'm going to be putting to you that Ms Saltau was malicious. What does that mean? There's nothing hard in it. It just means that she published for an improper purpose, that is, for - purpose that we nominate is to harm my client and damage his reputation. How do we know that that was her purpose? Because they said so in that interrogatory that I read to you, as part of what we rely upon and the other things in support of the allegation that they were malicious. Also part of that is, of course, we say that they were reckless as to whether what they published was true or false. As I said, one critical part of that as to recklessness is why did they publish this when they knew there was a witness and they didn't check (not transcribable), I suggest, members of the jury, like malice, and that will be the evidence. That's all I wish to say about the issues, members of the jury …".
I shall defer dealing with what was subsequently said during the trial as to the relationship between the evidence going to relevance and the evidence going to malice until dealing with the submissions made on ground 2.

[8]

The evidence of Mr Gayle, Mr Smith and Ms Russell concerning laughter (ground 1)

Mr Gayle was then called. It should perhaps be said that no differently from most defamation trials in the Supreme Court, but differently from most civil trials in the Court, there had been no service of any affidavits or witness statements and evidence was adduced in chief by counsel before each witness was cross-examined. The wisdom or otherwise of that course is not a matter as to which I express any view.
Mr Gayle said that he had attended Drummoyne Oval twice in 2015 for practice. He denied that any incident in which he exposed himself to Ms Russell ever happened. He said he had no memory of being in the dressing room with Mr Smith at Drummoyne Oval. He was shown an email dated 12 February 2015 from Sir Richie Richardson, sent to him and the other members of his team, which stated: "Dear Gentlemen, In the past few days Leanne Russell has encountered a few uncomfortable situations with members of the team. Please at all times treat her in a professional and respectable way."
Mr Gayle accepted that he had received the email, but said that he never thought that it was referring to anything that he had done.
Mr Gayle was cross-examined by Dr Collins, and Ms Russell's version of the events of 11 February 2015 was put to him: "Q. I just put to you that you had a towel around your waist in the change room at 2.15pm on 11 February? A. No, I didn't. Q. I put to you that Dwayne Smith was also in the change room at around 2.15 on 11 February? A. No, I didn't - I can't recall that. Q. Is it possible he was in the change room with you? A. I doubt it. Q. You doubt it, but you don't rule it [out]? A. I don't rule it out. Q. Was Dwayne Smith wearing training clothes at around 2.15pm on 11 February? A. Yes, he was wearing training clothes. Q. I want to suggest to you that at around 2.15pm you saw Leanne Russell come into the change rooms? A. No, I didn't. Q. I suggest to you that you were standing about 2 metres apart? A. We were. That's what he said. Q. I'm asking where you were standing-- A. No, I didn't see her. Q. --about 2 metres apart from Leanne Russell? A. No. Q. I suggest to you that you said to Leanne Russell in the change rooms, 'What are you looking for?' A. No, I didn't. Q. I suggest to you that she said to you, 'A towel'? A. No, I didn't - no, she didn't. Q. I suggest to you that at that point you pulled your towel up and down so that your penis was partially exposed? A. That never happened. Q. I suggest to you that as you did that you said to her, 'Are you looking for this?' A. That never happened. Q. I suggest to you that at that point, Leanne Russell put her hand up in front of her face to block her view of you and turned her head and walked out of the change room? A. Not to my knowledge, that never happened. Q. I want to suggest to you is that she said the word, 'No', at the point when she raised her hand up? You need to say for the transcript, Mr Gayle? A. I didn't see her. Q. You didn't see her? A. She wasn't in the dressing room. Q. Is it that she definitely wasn't in the change room also or that you don't remember seeing her in the change rooms? A. No, she wasn't there. We didn't have those engagement at that time."
It will be seen that Dr Collins carefully and in some detail put an account to Mr Gayle of what was said to have been his encounter with Ms Russell.
Mr Dwayne Smith, Mr Gayle's teammate and the only other person alleged to have been in the change room at the time of the incident, gave evidence in Mr Gayle's case on the following day. Unlike Mr Gayle, Mr Smith's evidence was that he did recall being in the dressing room with Mr Gayle, and that Ms Russell did enter the room: "Q. Did you go with the team to warm up immediately after arriving at the oval and going to the change rooms? A. No. Q. You remained in the change rooms? A. Yes. Q. You were in the change rooms with Mr Gayle? A. Yes. Q. While you were in the change rooms with Mr Gayle Ms Russell entered the change rooms? A. Yeah. Q. Where were you standing at the time that Mr Gayle entered the change rooms? A. I was actually sitting down. Q. You were sitting down, where were you physically in the change rooms? A. In the dressing room. I don't know where I would be, I was in the dressing room sitting. Q. I want to suggest to you you were standing behind Mr Gayle, about a metre or two behind him? A. I can't remember how far I was away from him. Q. Were you behind Mr Gayle? A. Yeah. Q. Was Mr Gayle facing towards Leanne Russell as she entered the change rooms? A. No. Q. Can you just describe to the jury what Mr Gayle was doing to your observation when Ms Russell entered the change rooms? A. We were talking. Q. You were talking to Mr Gayle? A. Yeah. Q. And Ms Russell entered the change rooms? A. Yes. Q. Did you see her enter the change room? A. Yes, I did. Q. Were you looking in the direction of the door to the change room? A. I was in the dressing room, I can't remember where the door was at that time. Q. No, but you saw Ms Russell come into the room? A. She passed me. Q. She passed you? A. Yeah. Q. Where did she go? A. Well, further past."
While Mr Smith agreed with Ms Russell's account to the extent that the two of them and Mr Gayle had been in the dressing room at the relevant time, he supported Mr Gayle's version of events by denying that there was any interaction between Ms Russell and Mr Gayle in the dressing room: "Q. I want to suggest to you that Mr Gayle had a towel around his waist? A. No. Q. I want to suggest to you that when Ms Russell entered the change rooms, Mr Gayle turned and looked at her? A. No. Q. Mr Gayle said to Ms Russell 'What are you looking for?'? A. No. Q. Ms Russell said, 'I'm looking for a towel'? A. No. Q. I'm asking whether you saw this, did you see Mr Gayle pull his towel up and down so that his penis was partially exposed? A. That did not happen. Q. You deny any conversation between Mr Gayle and Ms Russell in the change rooms? A. Yes. Q. I suggest to you, Mr Smith, that there was such a conversation and that you overheard it? A. No. Q. I suggest to you that Mr Gayle pulled his towel up and down, exposing partially his penis, and that as he did that he said, 'Are you looking for this?'? A. That did not happen. Q. I suggest to you that Ms Russell then put her hand up in front of her face to block her view of Mr Gayle, said, 'No' and walked out of the change room. You deny that that happened? A. Yes. Q. I'm suggesting, Mr Smith, that did happen and you observed it? A. No. Q. I'm suggesting that you and Mr Gayle then laughed about what had occurred? A. No. (emphasis added)
As things unfolded, the final question and answer in that exchange, whereby Dr Collins put to Mr Smith that he and Mr Gayle had laughed about the encounter, became a critical matter in the newspapers' ultimate application to discharge the jury. It will be seen in due course that particular prominence was given to the word "then" in the last and third last questions, which have been emphasised above.
Once again, there is no reason to doubt that the cross-examination of Mr Smith reproduced above reflected the findings on a central issue of disputed primary fact which the newspapers were intending ultimately to ask the jury to make. There is also no reason to doubt that that is precisely how the questions were understood by those appearing for Mr Gayle.
Ms Russell was called in the newspapers' case on the Wednesday. In her evidence-in-chief, she said nothing about any laughter between Mr Gayle and Mr Smith. Indeed, contrary to what had been put to Mr Smith by Dr Collins, and (as it later emerged) contrary to a witness statement prepared by Ms Russell in July 2017, her evidence at trial was that Mr Smith did not observe the exchange between her and Mr Gayle.
Her account of the incident in her evidence-in-chief was as follows: "Q. Could you just describe to the jury what happened when you went into the change room? A. When I went into the change room I saw Chris and Dwayne. Q. That's Chris Gayle and Dwayne Smith? A. Correct. Q. Just describe for the jury where they were in the change room relative to the door that you entered on? A. Chris was just inside the change room. He was probably about five or six feet back, near where the bank of lockers starts. Dwayne was behind Chris's left shoulder. Chris was - Chris was wearing a towel and he said, 'What are you looking' - Q. Before you go to that, sorry, Ms Russell can you describe for us what Mr Gayle was wearing apart from a towel, if anything? A. I believe he was wearing a shirt as well. Q. Are you able to describe the shirt? A. My best guess would be the usual training shirt, he would not be in plain clothes. Q. What was Mr Smith wearing, did you notice that? A. I can't say I recall, no. Q. Where was Mr Smith relative to where Mr Gayle was? A. Behind his left shoulder and possibly about two feet back. Q. Are you able to say which way Mr Gayle was facing as you entered the room? A. Facing directly to me when I walked in. Q. What about Mr Smith? A. He was standing almost on an angle looking to his right side of the room. Q. You were about to tell the jury what happened as you entered the room? A. Yes. Chris asked me what I was looking for. Q. If you could, try and use the exact words that he used, so he said, and then say the precise words he used? A. He said, 'What are you looking for'. Q. Yes? A. I said, 'A towel'. He replied, 'Are you looking for this?', and pulled his towel out and down. I proceeded to shield my eyes and said, "No", and I exited the change room. Q. When he said, 'Are you looking for this?', what did you see? A. I saw the top half of Chris's penis, I apologise, and I thereafter shielded my view and I left the change room. Q. How far away from Mr Gayle were you when this occurred? A. About three feet. Q. You say you shielded your view, can you show the jury what you physically did? The witness has shown-- HER HONOUR: No, just for the transcript the witness is holding her left hand up, palm out, near her eye. COLLINS Q. You lifted your left palm up in front of your eye and what did you do then? A. I said, 'No', and I walked out. Q. Can you estimate for the jury how long this interaction took? A. I would guess from the time I entered the change room to the time I left it would have been under ten seconds. Q. Did you observe what Mr Smith was doing while this occurred? A. He was eating something. Q. Why are you so sure about that? A. I remember him chewing, and he was looking off to over his right shoulder. I remember him chewing something. Q. Are you able to say what Mr Smith was looking at as this interaction occurred between you and Mr Gayle? A. No, the change room was empty. Q. What was Mr Smith looking at, are you able to say? A. He was looking off to the right, which was the right wall of the change room. Q. Yes, what does that mean relative to where Mr Gayle was? A. To where Mr Gayle was? Can you repeat the question, I'm just-- Q. I'll ask you squarely, was Mr Smith looking in your direction in the time of this interaction? A. No, he was looking over his right shoulder towards the right wall. COLLINS: Your Honour, I notice the time. Is that a convenient point for the morning break? HER HONOUR: Yes, I'll take an early adjournment".
It is palpable on the face of the transcript that Ms Russell's evidence concerning what Mr Smith was doing during the interaction had not unfolded as expected. It was squarely contrary to what had been put to Mr Smith in cross-examination the day before. Ms Russell's clear evidence that Mr Smith was not looking at her when Mr Gayle was said to have said "Are you looking for this?" was given first in answer to a non-leading question ("He was looking off to the right") and then confirmed in the last question and answer before the adjournment, when counsel asked her "squarely" whether Mr Smith was looking in her direction.
There are all sorts of explanations for the unexpected difficulty encountered by counsel in evidence-in-chief. And it may fairly be said that little might turn on where she recollected Mr Smith was looking at that brief moment in time, years before, in the dressing room at Drummoyne. But the nature of litigation on contested issues of testimonial evidence is that such a departure can assume a heightened significance, well beyond its true worth.
In any event, the departure from what had been put to Mr Smith the previous day must have been obvious to counsel on both sides and to the judge, who acceded to an application for an "early" mid-morning break.
During the adjournment Dr Collins had an opportunity to confer with Ms Russell. I infer that was the purpose of his application for an early mid-morning break. It is unclear whether that occurred. When the hearing resumed, Dr Collins did not return to the answers which Ms Russell had already given. However, he asked a further question capable of being understood - and which, the record shows, was in fact understood - as an attempt to elicit evidence as to Mr Smith and Mr Gayle laughing about the incident: "Q. Before going to the stands did you hear any interaction between Mr Gayle and Mr Smith as you were in or leaving the change room? A. No, I didn't."
Ms Russell's evidence produced two unsurprising consequences. First, counsel for Mr Gayle did not cross-examine on Ms Russell's answers. Secondly, in a case where the central issue was whether Mr Gayle had exposed himself, and where the sole witness of primary fact called by the newspapers had seemingly given different testimonial evidence from that on which the cross-examination of Mr Smith had proceeded, the inconsistency was at the forefront of counsel's address to the jury: "On Tuesday Dr Collins suggested to Dwayne Smith that he saw what Russell said happened and he laughed about it. I'll take you to the transcript, because this is important, members of the jury. I explained part of this to you yesterday but before I take you to the transcript: barristers don't invent things. We're not allowed to make things up and just say, well, we think this might have happened and put it to witnesses. We're only allowed - and this applies to Dr Collins as much as to me, to all of us - we're only allowed to put things based on the information that we're given by the people in question. It's called our instructions. That's the lawyers' phrase. We know that Dr Collins had instructions and they must have come - they could only have come - from Ms Russell. What were they? You can tell what they were and you can tell that this is what Ms Russell was saying - this is the crucial point - she was saying this, knowing it would be relied upon by the counsel for the newspapers, a serious thing, a very serious thing. As I said, we know that she said this, because this is what was put by Dr Collins to Mr Smith in relation to this incident."
At the conclusion of the cross-examination, Mr McClintock called for a witness statement which Ms Russell had used to refresh her memory out of court. That statement was not tendered at the trial, but was informally tendered on the discharge application. It recorded Ms Russell stating that both Messrs Gayle and Smith had been looking at her as Mr Gayle had exposed himself and asked "Are you looking for this?". The witness statement did not mention any laughter.
From the premise that Ms Russell had instructed Dr Collins that Mr Smith and Mr Gayle had laughed immediately after the incident, Mr McClintock launched a robust attack on her credibility in his address to the jury: "On Tuesday, Smith sees the exposure, thinks it's funny, laughs about it. On Wednesday, in her evidence-in-chief, he didn't see it, and didn't laugh about it. It is absolutely clear that in the witness box, Russell gave a totally new and inconsistent version of Mr Smith's involvement. The two can't stand together. He either saw it, and thought it was funny, or he didn't see it, and didn't laugh. These are all part of the way you assess the honesty of people, and she was dishonest and this is a good example. Let's consider the possibilities. The first possibility, I suggest you would rate this low, is that she made a mistake, and forgot what she told Dr Collins before. If that's the case, she's unreliable as a witness, and you wouldn't accept her on any disputed issue, where her evidence is important. The second possibility, and this is what we say happened, is she's a liar. She fabricated this. She fabricated both versions, and it's really hard to be a really good liar. Because really, people who tell the truth don't have to worry about being consistent. Because they know what happened, and they say it. People who are liars always have the problem that they get the details wrong, and give inconsistent versions, because they're not telling the truth. If you're telling the truth, as I said, you know what happened. If you're lying, you don't and this is a classic example of that. She says on one day, through Dr Collins on one day, he saw it, thought it was a big joke, ha, ha, ha, laughed about it. Next day, didn't see it, didn't laugh about it, no interchange. That's a classic example of how difficult it is for a liar to keep consistent." (To be clear, I regard much of this rhetoric as misplaced. Honest witnesses with clear recollections of relevant events, honest witnesses with poor recollections, witnesses with no recollection and dishonest witnesses all get details wrong in ordinary life as well as in cross-examination. That is not intended as a criticism of counsel, who was entitled to exploit the perceived inconsistency as he saw fit, within certain limits, and was certainly entitled to employ rhetoric to persuade the jury to conclude that the witness was lying.) The clear import of Mr McClintock's address to the jury was that Ms Russell had been the source of instructions to Dr Collins as to Mr Smith's laughing in the dressing room.
Immediately following the conclusion of Mr McClintock's closing address, Dr Collins identified a basis for the question to Mr Smith about laughter other than instructions from Ms Russell. That source was a text message sent by Mr C J Clark, the West Indies team physiotherapist, to Ms Russell in the days following publication of the original article making the allegations against Mr Gayle. Mr Clark said in that text message: "well i can attest to seeing Gayle in his towel immediately before you went in. and that he and smithy were lauhhing [sic] about it as i walked in thereafter. and the joking thay [sic] happened for the next few days"
That message was never admitted into evidence before the jury. However, it was part of an exchange of text messages which Ms Russell had produced in August 2016 and again in October 2017 in response to a subpoena served upon her by Mr Gayle, and is to be treated as if it had been tendered on the voir dire in which the discharge application was made. The newspapers submitted that Mr McClintock should have known that this was a potential basis for the question about laughter in the alternative to instructions from Ms Russell (as had been the import of Mr McClintock's closing address). Mr McClintock maintained that, although he had probably at some stage seen the text message, it had not been part of his thinking processes when he addressed the jury.
It will be convenient to return to that dispute when dealing with ground 1 of the newspapers' appeals, and now turn to another aspect of the cross-examination of Ms Russell, which gives rise to ground 3.

[9]

Ms Russell's mental state (ground 3)

The nub of ground 3 is that Mr McClintock failed sufficiently to put matters to Ms Russell in cross-examination to sustain a separate part of his attack upon her credibility in his closing address.
During her examination-in-chief, Ms Russell gave evidence that she suffered from anorexia: "Q. Ms Russell, what made you go into the change room at the time you've described, a bit after 2 o'clock on 11 February 2015? A. I hadn't eaten that day and the catering was placed in the change room on that occasion. Q. Do we take it from that that you went into the change room looking for catering? A. Correct. Q. When Mr Gayle asked you, 'What are you looking for?' why did you say, 'A towel'? A. I have a history of eating disorders, I often avoid food. I lose weight very quickly when I'm alone, particularly on tour. My natural inclination is to not discuss food. I rarely accept invitations out based around food. So, it was a knee jerk reaction to avoid the topic of food. Q. Sorry to ask you the question but what is the nature of the eating disorder? A. I suffered with anorexia in a point where I would starve myself and exercise excessively in order to lose weight. Had a history of going up and down with my weight and that was a way that, a method that I had employed to keep my weight under control. Q. What was the nature of your condition in relation to your eating disorder as at 11 February 2015? A. It was at the start of the tour, and again, when I'm away from family and friends it's an opportunity for me to not have to eat very much so I was starting to employ those tactics or had already started, I should say."
Mr McClintock took up the subject of Ms Russell's eating disorder from the opening question of his cross-examination: "Q. Ms Russell, I don't wish to be unkind to you in any way, but you told the jury that you were suffering from anorexia in February 2015, didn't you? A. Yes. Q. Anorexia is of course a recognised psychiatric illness, isn't it? A. Yes. Q. Were you taking any medication in 2015 for it? A. Yes. Q. What medication were you taking then? A. I was taking Sertraline. Q. What does that do? A. Sertraline is an antidepressant. Q. Are you taking any medication now? A. Yes. Q. What medication are you taking? A. Same thing. Q. Is that the only drug that you're taking? A. Yes. Q. Were you receiving any treatment from a psychiatrist in respect of anorexia, your anorexia in February 2015? A. No. Q. Are you receiving any such treatment now? A. No." Mr McClintock returned to the topic of Ms Russell's eating disorder only once more in cross-examination: "Q. I just go to now, to ask you about the incident that you say occurred on 11 February 2015 first. You say that you went into the dressing room looking for sandwiches? A. Yes. Q. You say that when Mr Gayle asked you what you were looking for you said, 'A towel'? A. Correct. Q. The reason why you said that was because of this psychiatric illness, anorexia that you were suffering, wasn't it? A. Correct. Q. I'm not criticising you for this, but it wasn't true, was it, you weren't looking-- HER HONOUR: That you were looking for a towel. MCCLINTOCK Q. You weren't looking for a towel? A. No, correct. Q. The illness, you felt so sensitive about the illness you suffered that you told Mr Gayle an untruth you say? A. Yes."
However, in his closing address to the jury, Mr McClintock made a much broader attack on Ms Russell's credibility. That attack was explicitly linked to Ms Russell's evidence about her anorexia: "Now, a woman who is so troubled by anorexia, someone who is so mentally fragile, that they can't even use the word 'sandwich' and has to use the word towel - there is still something very, very odd about that, members of the jury and I'm not entirely sure we'll ever get to the bottom of it, but the significance is this: the whole thing starts with a lie told by Ms Russell. It's not true that she was looking for a towel. She was looking for a sandwich. So, it's untrue. You might think her explanation, anorexia, the psychological disability that I asked her about, is a satisfactory explanation for the untruth - for the lie - but it is still a lie and you can assess her credibility because you know that she told a lie. But more significantly, even more significantly, her conduct at a crucial part of the first story was affected by the psychological and psychiatric disability she is suffering from. She did something because of the anorexia. That is again something significant that you would take into account in assessing her credibility. I don't wish to be unfair to her and I certainly don't wish to be unkind. I don't minimise the agony that people who suffer from anorexia suffer from, or indeed from any other mental illness, depression, and you remember she told you she was [on] antidepressants at the time in question and in the witness box. I don't minimise that at all. If you've ever had anyone you know in your family who suffers from a mental illness or depression, you'll know how agonising it is. But - but - it does affect how you should assess her because she was in the grip of it when she says this incident, which we say didn't happen, happened. And she was - and her conduct was affected by it, members of the jury. She told an untruth. Now, and as I said, the - when you think about it, her sensitivity of the illness was so acute that she couldn't say what she was actually doing - looking for food. There may be other explanations for this - perhaps the one she gave, members of the jury, and I'm content to live with this - that is, that she was affected by her condition. As I said, I don't wish to be unkind but you might think that it's not a very good start to a case about the credit - a case in terms of Ms Russell for her credibility, it's an extreme thing to ask a jury to find a man indecently exposed himself on the say so of someone who's unreliable, and she is, and uncorroborated."
The newspapers contend that Mr McClintock had no proper basis to put to the jury that Ms Russell was generally unreliable due to her mental illness, such a proposition never having been put to Ms Russell in cross-examination. They also complained that they were taken by surprise, and might, if they had known of the extent of the submission which would be made, have adduced evidence that people suffering from eating disorders did not have any propensity to give false evidence.
That latter submission contributed to an aspect of the primary judge's summing up to the jury: "I should remind you that there is no evidence in the proceedings from which you could make any general assumption about the likelihood or otherwise of a person suffering from an eating disorder generally being dishonest. Mr McClintock's submission was tied to that first statement that she, herself, frankly acknowledged that she had lied about why she entered the change room because she had that issue with talking about food. I do not think he was putting it any higher than that."
The way in which the primary judge addressed this aspect of the application is the subject of ground 3 of the appeals.

[10]

Mr McClintock's address as to malice (ground 2)

Ground 2 concerns the scope of matters which it was open for Mr McClintock to put in his closing address. The newspapers contend that the matters which Mr McClintock canvassed in support of the contention that the publication was actuated by malice went beyond the particularised case without forewarning. The particulars of malice pleaded in Mr Gayle's reply have been extracted above. As stated in the newspapers' written submissions in this Court, the four matters alleged to have gone beyond the particularised case were: "(a) the Appellants' failure to call evidence from editors who made the decision to publish; (b) an email from Ian Fuge (Exhibit O); (c) Ms Saltau's failure to identify Mr Clarke and make enquiries of him; and (d) the Appellants' conduct in publishing the articles allegedly without verification from Sir Richie Richardson, knowing that confirmation was important."
Each of these four matters was an aspect of Mr Gayle's case in relation to the reasonableness element of the s 30 qualified privilege defence relied upon by the newspapers. Immediately before the commencement of closing addresses, the primary judge had ruled, contrary to her earlier decision in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074, that the question of reasonableness under s 30(1)(c) was a matter to be determined by her Honour, not by the jury (this ruling is the subject of ground 5). In accordance with that ruling, Dr Collins did not address any of the matters going to malice, including the four matters specified above, in his closing address to the jury.
The four matters of which the newspapers complained were put to the jury during Mr McClintock's closing address as follows.
First, of the failure to call the editors, it was said: "We didn't hear from the three people who were the actual decision makers to publish these articles who were Mark Forbes, the editor of the Melbourne Age, acting editor, Mr Fuge who was the sports editor of the Sydney Morning Herald and Mr Darren Goodsir who was the editor of the Sydney Morning Herald. From that you can take it that their evidence would not have helped and it's in fact it's probable that that answer was based on information supplied by them members of the jury. They never came to Court to explain what happened and therefore you can take it their evidence would not have helped." (The reference to "that answer" is a reference to the interrogatory in which the newspapers said that by publishing the articles they intended to damage Mr Gayle's reputation.)
Secondly, Mr McClintock said of the email from Mr Fuge (the contents of which are apparent from what follows): "I don't know about you members of the jury but if someone was going to publish something about me whether it was defamatory and attacked me and smeared my reputation, I'd hope that before they did it they gave me a fair chance to answer it so I could put my side of the story, because that's what journalism's supposed to be about, it's not supposed to be about making judgments. Here, if you look at exhibit O, do you think this was a fair attempt to obtain Mr Gayle's side of the story. Get this, again, it's pretty short, I'll just read it to you 'On January', it's an email from Mr Fuge to Mr Decent on 8 January 2016 at 5.21 re Gayle, maybe trying to get him to renegade his media department 'We just need to be able to say we tried to get him but could not'. In other words, we don't care what he's got to say, we don't care whether there's an answer to this, we just need to say that we tried, that's all and didn't get it. In fact you can see from that that they don't want an explanation, that they, in fact they prefer not to have one members of the jury. If that's not malice members of the jury I find it hard to know what would be, that's the third point."
Thirdly, of Ms Saltau's failure to identify and make inquiries of Mr Clark, it was put: "Fifth reason for malice. Failure to contact Mr Clark and indeed to identify him. You see, Ms Russell tells Ms Saltau that she told someone about it. A colleague I think it was who then went to Sir Richie Richardson. Does she ask who the colleague was, no. We know Ms Russell was in contact with Mr Clark at the time because he put her up to going to the Age, you've seen the text messages. Mr Clark could have cast light on this, why didn't she do it? This is recklessness and shutting your eyes to the obvious in an extreme degree members of the jury and plainly malicious."
Fourthly, in relation to the complaint that the articles were published without verification from Sir Richie Richardson, it was put: "[S]he knew that verification of the story from Sir Richie Richardson was crucial and that the story couldn't be or shouldn't be published without verification members of the jury. That's exhibit 4 members of the jury. Again, I won't ask you to take it out, it's this. The point about it is Ms Saltau says to the editors on 5 January at 2.19: 'Dear Ed, Chris Barrett in Sydney has gone to find the Windies Team Manager, Richie Richardson who was made aware of the allegation at the time. I've spoken to Gayle's agent who has tried to persuade me not to run the story but says he'll call back when he's spoken to Gayle. The story will need to be legal. I am very confident about the credibility of the woman but think the story needs Richardson confirming an incident took place to put us on more solid ground.' Then she sets out the draft. Mr Barrett ultimately gets hold of Sir Richie Richardson and this was the last question and answer in my cross-examination of him, question, 'You were certainly', because he was the one who actually spoke. 'You would certainly agree with me wouldn't you that Sir Richie Richardson did not verify the story that Ms Saltau told you about, that's correct isn't it?' answer, 'That's correct' so having known that verification was crucial, they didn't get it and they couldn't stop themselves, they then go ahead and publish without verification from someone who they thought would know."
The gravamen of the newspapers' complaint for ground 2 is that they were prejudiced by the inability to address the jury on the four matters listed above relied upon by Mr Gayle to show that the newspapers were actuated by malice, Dr Collins having addressed first. For his part, Mr Gayle submitted that adequate notice had been given by his counsel during the course of the trial that the matters relied upon to show reasonableness were also relevant to malice.
The newspapers described what occurred as a "radical departure from the pleaded case without notice". The newspapers submitted that it was not merely the fact that Mr Gayle was permitted to make these unpleaded points to the jury. They emphasised that the plaintiff addressed the jury last. And they emphasised that the points were made with all of the advantages of "the advocate's art".
The newspapers said that the prejudice suffered "was not cured or ameliorated by the primary judge's summing up". Her Honour adhered fairly closely to the lengthy (fall-back) direction proposed by the newspapers (15 subparagraphs over pages 8 and 9 of their written submissions in support of the jury's discharge), which Mr Gayle had not opposed: see above at [20]. That involved stating the following matters relevant to three of the four points outlined above (it was not said that any direction was warranted in relation to the submission that the three editors had not been called).
Of the email from Mr Fuge, her Honour said: "Mr McClintock reminded you about exhibit O, which is an email from Mr Fuge. In that email he is talking to one of the journalists about getting a response from someone and the journalist is saying, I have to try and get a phone number and Mr Fuge says, 'We just need to be able to say we tried to get him but couldn't'. Mr McClintock said you would take that as a mark of no real effort to contact Mr Gayle but rather an effort to be able to say we tried to contact him but no effort to actually contact him. I should point out that that email, in the chronology, could only relate to the last series of articles and only relating to the Sydney Morning Herald."
Of the failure to make inquiries of Mr Clark, her Honour said: "Ms Saltau gave evidence that she did turn her mind to whether she should speak to CJ Clark and try to get information from him. It was put to her in cross-examination that that was an obvious step, to check the terms of the complaint that Ms Russell said she had made to the physio. She said she thought the most important aspect of this was that someone in a position of authority within the team, that is Richie Richardson, had been made aware of it and had acted on it, and that was what she sought to check. I remind you that Dr Collins said in his closing address to you that there is no suggestion that CJ Clark was in the change room at the time of the alleged incident, so he could not have given direct evidence of what occurred."
Of the decision to publish the articles without verification from Sir Richie Richardson, her Honour referred to his email of 12 February 2015 and the steps which had been taken by the journalist to confirm its existence and content. Her Honour's summing up continued: "Mr McClintock invited you, I think, to compare the terms of the email with the terms of the complaint; but Ms Saltau's point was it did exist, there was obviously something that was responded to and something that was the subject of a complaint. You will recall that Ms Saltau sent Chris Barrett to seek a comment from Sir Richie Richardson in the change room. Ms Saltau gave evidence about that. Mr Barrett, because he was at the game at the SCG, would be able to go to the dressing room and put that to Richie Richardson. The defendants rely on the fact that she sent Mr Barrett to make that inquiry. Mr Barrett did go to the change room. He spoke to Sir Richie Richardson and also to the media person, Phil Spooner, at the SCG. You will remember Mr Barrett gave evidence about that. I think he waited around the change room for a while and ultimately he had a conversation with both of them. He said he laid out what Fairfax had heard, that they had heard allegations against Chris Gayle that he had exposed himself to a woman who worked around the team in the lead up to the World Cup, and that it was our information that Richie knew about or was told about the allegation and then sent an email to the team. Mr Barrett asked Sir Richie whether he could comment or confirm or deny the incident. He said his response was, 'Did you hear this from the woman or someone else?' Later he asked them to confirm or deny the story but they declined. Then he gave a description of Sir Richie Richardson's demeanour. He said that Sir Richie Richardson was frowning, that he appeared alarmed and not pleased at all to be discussing the subject. Prior to the publication of the first articles, there was evidence that Mr Barrett conveyed the result of that inquiry back to Ms Saltau. Mr Barrett's evidence did not address that issue, but Ms Saltau's evidence did. She said that Mr Barrett had conveyed to her that it was clear Richie Richardson knew what he was referring to."
The newspapers emphasised in their written submission to the primary judge on the discharge application that this was a fall-back position: "The fundamental unfairness of the approach adopted by the plaintiff is, respectfully, obvious: the defendants have been deprived of the ability to put submissions, by their counsel, to the jury in relation to each of the above aspects of the evidence, and to answer the submissions put by plaintiff's counsel. A neutral statement by the trial judge of the evidence the defendants would have addressed upon, had the plaintiff complied with the obligations set out in the authorities, is no substitute at all for an address by counsel in respect of the same matters."
The newspapers submitted that they had no notice that evidence relied on in opposition to whether the publication was reasonable would be deployed to establish malice. They said that it was not practicable for counsel to be interrupted in full flight in his address to the jury, and maintain that they applied for the discharge as soon as practicable, immediately upon Mr McClintock sitting down.
Mr Gayle's submissions departed somewhat from those at trial. There the emphasis was that there was evidence on those matters, and counsel was entitled to deploy it as he saw fit. It was said that "the only question now is not about the particulars, but about is there evidence and on every point, there was evidence". But no attempt was made on appeal to defend that aspect of the submission, which ignores the controlling effect particulars may have on the case a litigant is permitted to advance, as opposed to the evidence which may be admitted.
On appeal, Mr Gayle relied on what had been said in the course of advising on the likely absence of objections to testimonial evidence adduced in chief, a point which had also been made at trial. His submissions were based on two passages of argument, both made in the absence of the jury.
First, shortly before the end of the first day's hearing, there was a debate as to the determination of reasonableness, and whether to forestall the possibility of a further trial, reasonableness should go to the jury, and for her Honour to give an independent determination of the issue. During that exchange, Mr McClintock said: "MCCLINTOCK: Your Honour, the reasonableness case in this case is so thin that, as I shouldn't get ahead of myself but I'll be asking your Honour to take it away from the jury. It's not going to affect the evidence because all of the evidence that is relevant to reasonableness is relevant to malice, as is always the case, in fact, but there is going to be as I understand the way the evidence will come out, there will be a no evidence - there will be an application to take it away from the jury. If your Honour were against me on the propositions that I've been putting to your Honour, as I would assess your Honour will not be, but in addition, your Honour, if your Honour is against me on who determines the issue, I will ask your Honour independently of whatever your Honour leaves to the jury to determine the issue yourself so that we do not have to go through a new trial, if, for example, the Court of Appeal would disagree with the position that your Honour states in Daniels." (emphasis added)
The following morning, immediately before the newspapers' case opened, there was the following exchange: HER HONOUR: Can I just ask, Mr McClintock, in light of the matter I raised this morning for further argument about whether reasonableness is to be determined by me or by the jury, are there going to be challenges to the admissibility of some of this evidence about the journalists. MCCLINTOCK: I take the view, your Honour, that it's relevant to malice. HER HONOUR: That's what I was going to say, do you accept that the whole of the evidence that would go to reasonableness also falls under the rubric of malice? MCCLINTOCK: Yes, your Honour. I won't be objecting on that basis. I don't suppose it's necessary to expand. We're dealing critically with states of mind and both in relation to reasonableness and in relation to malice therefore logically everything that would be relevant to one must be relevant to the other."

[12]

The explanation given on 30 October 2017

On the morning of Monday 30 October 2017, in the absence of the jury, when ruling on the discharge application, the primary judge gave a brief explanation for her decision. I have emphasised the passages which the newspapers contend "are impossible fully to reconcile with the judgment delivered 13 months later": "HER HONOUR: Ms Russell didn't say to Minter Ellison that the two men laughed. COLLINS: That's right. HER HONOUR: You also put [the laughter] to Mr Smith as if it was part of the same incident. Then when she gave evidence, she did change her version in that she said Mr Smith was looking over his shoulder chewing a sandwich, and that was a change. COLLINS: Yes. HER HONOUR: To the extent that laughter was an issue, it did not represent any change because she had said nothing about laughter. COLLINS: That's right. HER HONOUR: You had put that, if I may with great respect to you, in a way that was confusing to me, and Mr McClintock, based on the document which I didn't know existed, and Mr McClintock couldn't reasonably have thought was the basis for your putting it. So, we are left with the jury having been invited, with a proper basis, to a further change. She changed her version in that she told Minter Ellison Mr Smith was watching the exposure of the penis. Whereas, she told the jury he wasn't. But they have been misled to the extent that they had been invited to think she lied when she told you that she heard laughter because she never told you. Also, you tell me part of the problem here is I don't have evidence about the foundation for your questions, but you've told me that it came from that text message. It seems to me that this is a situation where, if the jury has been misled about that, they have been misled about a composite proposition part of which was properly put and part of which, as it turned out, didn't have any foundation, but came from the way in which the case was run. So, I think the starting point is that, you are bound by the way you ran the case. But to the extent that an aspect of the composite proposition is wrong I could correct it. The question is, how do I correct it without actually doing more harm to your side of the case, because I would necessarily have to tell the jury that half of the proposition had a proper foundation. That she did change her version of events. In doing so, I make that point stronger than it was, because Mr McClintock invited the jury to infer from the way you put the questions that she had told Minter Ellison Mr Smith was watching the incident. If I want to go to your actual instructions - I don't think it is appropriate anyway because the proper approach is, counsel are bound by the way they run the case. But if I was to go into what in fact were your instructions, I bolster that point out, because I would be telling them she did give Minter Ellison a statement in which she said Mr Smith observed the exposure of the penis. COLLINS: I don't wish to cavil with your Honour's ruling ..."
Thereafter, there was a debate as to a proposed direction. The newspapers had sought an elaborate direction to the effect that the jury must put out of their mind what had been said about Ms Russell being the source of Dr Collins' instructions about laughter, and that she must have lied at least once. Her Honour said, with respect correctly, that "That deals with one half of the position". There followed this exchange: HER HONOUR: ... If I say all of those things, I would also have [to] be saying the opposite in respect of the proposition put to Mr Smith. That he observed the exposure of the penis. COLLINS: Yes. HER HONOUR: I would have to say: 'You should disregard, and put out of your mind, the submission that she must have been the source of instructions about the laughter. But you must have close regard to, and it is correct that, she was the source of the instructions about Mr Smith observing the exposure of the penis.' Is that what you want me to put? You want me to put both halves of the proposition?"
Dr Collins sought and obtained an opportunity to take instructions, and then confirmed his instructions not to seek a direction as formulated. Mr McClintock confirmed that the text message from Mr Clark was not in his mind when he addressed the jury on the source of Dr Collins' instructions, but accepted the correctness of what Dr Collins said, namely, that the text message was the basis of his question about laughter. Her Honour observed that one point which might have contributed to Mr McClintock's state of mind, which "certainly did in mine" was: "HER HONOUR: ... that, when that evidence was led from Ms Russell, Dr Collins asked did she hear anything. McCLINTOCK: Yes. HER HONOUR: One would expect that question to be asked in circumstances where Dr Collins expected a particular answer proofed, or his team had proofed the witness. McCLINTOCK: Yes."
Her Honour proceeded to explain her reasons with counsel for Mr Gayle over the next few pages. Towards the end of those exchanges, the following was said: HER HONOUR: I had spent time last night, and this morning, writing out four different ways in which I might, and I came to the conclusion, in every way, that would endorse your submission in the way it was unfair to the defendant. So, then I did ask myself: Well, do I have to discharge the jury? I think the answer is, no, because it wouldn't be fair to the plaintiff because it's not your fault. McCLINTOCK: Thank you, your Honour. HER HONOUR: Unless it were a discharge of the jury at the defendants' cost. But even that I think carries an unfairness, because we have all been here and got to this point. So, it's not perfect. Not every jury trial can be run in the way that is perfect. I think the fairest course to the best of all possible worlds is to press on and make no interruption."

[13]

The reasons contained in the judgment

Paragraphs [76]-[111] of her Honour's judgment given on 30 November 2018 are formal reasons for the ruling at trial.
The primary judge commenced with the evidence of Mr Smith and Ms Russell and the "obvious inconsistency" (at [89]) between what had been put to the former and the evidence-in-chief of the latter. Her Honour referred to Ms Russell's witness statement which had been called for at the conclusion of her cross-examination, and noted that it was silent as to laughter. Her Honour accepted what Dr Collins said about the text message being the source of his putting the question to Mr Smith about the laughter, which carried with it the consequence that Mr McClintock had been factually incorrect. However, her Honour discounted that matter, saying at [96]: "The difficulty was that, with great respect to Dr Collins, the proposition put to Mr Smith did not reflect the terms of CJ Clark's text and indeed was not reasonably based on that information. The way in which the proposition was put to Mr Smith unequivocally suggested that he and Mr Gayle laughed together immediately after the alleged indecent exposure. That is simply not what CJ Clark said in his text message. More importantly, in the absence of any suggestion that CJ Clark was in the change room at the critical time, the proposition put to Mr Smith in cross-examination was a matter that could, logically, only have come from Ms Russell."
The primary judge also failed to see any basis on which Mr McClintock could reasonably have been expected to have inferred that what Dr Collins put was based on the text message rather than instructions from Ms Russell. Her Honour continued at [97]: "In the circumstances, regrettably, it is necessary to record my view that that aspect of the cross-examination of Mr Smith was apt to mislead the plaintiff's counsel. It was well open to Mr McClintock to conclude that the source of the laughing allegation must have been Ms Russell; indeed, that was the only sensible inference, having regard to the terms in which the propositions were put to Mr Smith."
The primary judge rejected the submission that it was factually wrong to have asserted that the newspapers' lawyers had taken "instructions" from Ms Russell, who was not their client. She recorded that the point she understood Mr McClintock to have been making was that Ms Russell was the source of the information. The primary judge said that there was a proper basis for drawing that inference.
The primary judge also rejected the newspapers' submission that it was necessary to have put those individual matters to Ms Russell in cross-examination, in particular that she had told someone in the newspapers' legal team that Mr Smith had laughed, and that she had given evidence which contradicted that version of events. Her Honour was of the view that it was clear that counsel for Mr Gayle had been contending that Ms Russell was lying, and was not persuaded that each separate aspect of that submission was required to be put.
Her Honour added, at [104], after dealing with further submissions as to the basis on which questions had been put to Mr Smith: "More significantly, as submitted by the plaintiff, the real impact of the closing address was the other, inseparable part of the same submission which was that Ms Russell had given completely inconsistent accounts on the important issue of whether Mr Smith was facing in the direction of the alleged incident and watching it (as she said in her statement) or whether he was looking away at the critical moment (as she said in her evidence in the trial)."
Her Honour concluded that it would be unfair to Mr Gayle to discharge the jury "on the basis of a problem that was of the defendants' own making." She considered that "they should be bound by their conduct of the trial."
Her Honour addressed the submissions based on what had been said in closing address on malice at [106]-[110]. Her Honour recorded the parties' submissions, including that made on behalf of Mr Gayle at [108]: "[R]epeatedly during the trial, counsel for the plaintiff referred to such matters including emphasising in his opening address the defendants' answer to an 'intention to damage' interrogatory; emphasising the recklessness of Ms Saltau in publishing the allegations when they knew there had been a witness to the alleged incident but did not seek to contact that person; emphasising throughout the trial that the plaintiff saw the reasonableness evidence and the malice evidence as being interchangeable and summarising the matters relied upon in respect of reasonableness (in support of the no case submission) shortly before Dr Collins began his closing address to the jury."
Her Honour concluded: "I considered that there was force in the plaintiff's submissions and that the defendants ought to have well appreciated by the end of the trial the way in which the case on malice would be put. In those circumstances, I considered that the issues raised by the defendant could appropriately be dealt with by direction and did not warrant discharge of the jury."
Thirdly, her Honour addressed the complaint as to what was put concerning Ms Russell's mental state at [111]. It is convenient to reproduce the entirety of the paragraph: "Finally, the defendants complained of submissions made by Mr McClintock as to the relevance, in the jury's assessment of Ms Russell's credibility, of her mental state (specifically, a history of anorexia). The defendants submitted that the closing address deployed that condition as a generalised attack on the reliability of the whole of her evidence. It was submitted that, if counsel were proposing to make a submission in those terms, that should have been put to Ms Russell. The defendants submitted that, had that occurred, it 'might have been possible' for the defendants to call evidence as to the proposition that a history of an eating disorder could cause a person to fabricate an allegation of intentional or indecent exposure or an indecent proposition. The prospect of such evidence being available and admissible was speculative. I did not regard there to have been anything improper in the submissions put by Mr McClintock."

[15]

Inconsistencies between the reasons and what was said on 30 October 2017?

The newspapers placed weight on what had been said by the primary judge at the time, rather than what her Honour had written 13 months later in her reasons. They submitted that the "outline of reasons" given by the primary judge at the hearing was "impossible to reconcile with the judgment delivered 13 months later".
It may be doubted whether it was accurate to describe what was said by her Honour on 30 October 2017 as an "outline of reasons". The newspapers' submissions largely drew upon statements by the primary judge in the course of exchanges with counsel. In Ng v R [2011] NSWCCA 227; 214 A Crim R 191 at [41] it was said: "This Court has observed that it will not normally find an error of principle from interchanges between the Bench and counsel, since judicial views expressed during submissions do not necessarily reflect a considered decision: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475 [32]. It is the judgment of the Court which ought be considered for this purpose, and not exchanges between the Bench and counsel during the course of submissions."
But the only point made by the newspapers, as I understood it, was that insofar as her Honour characterised the primary facts enlivening her discretion, what she said at the time was inconsistent with what she published 13 months later, and the former was more accurate than the latter. That submission was based on the matters placed in bold in the exchange reproduced in [77] above. I do not accept that there was any inconsistency between those matters and what was found in her Honour's judgment.
The first two points (which concerned the fact that Ms Russell had not in her witness statement mentioned laughter) are readily refuted. There was never any dispute that Ms Russell's witness statement did not mention laughter, a point made by her Honour at [91] of her judgment. Her Honour made it plain, both during the exchanges at the time, and at [94] of her judgment, that she accepted what Dr Collins had said from the Bar table, namely, that the basis for his putting to Mr Smith that he had heard laughter was the text message.
On the most critical point, namely, her Honour's acceptance at the time that the jury had in fact been misled, that was necessarily entailed by the terms of Mr McClintock's summing up and her acceptance that the basis for Dr Collins' questions about laughter came from the text message, rather than from Ms Russell. But there was no inconsistency with what was relied on by the primary judge in her judgment, namely, that the way the questions were asked of Mr Smith (a) was not supported by the text message and (b) did not reasonably permit Mr McClintock to appreciate that the source of the question had been the text message.
The newspapers' submissions on this aspect of the appeal attributed considerable significance to a small word which may not have hitherto been noticed. The last and third last questions of the cross-examination of Mr Smith reproduced above at [34] included the word "then". This word was repeatedly described in the newspapers' oral submissions as a "temporal indication". Dr Collins' point was that the word, used twice, made it clear that what was being put was that the laughter happened later: "We say it was clear from the way the questions were structured that the laughter was said to have occurred after Ms Russell had left the change room because of those two temporal indications at lines 24 and 31."
Had either side requested that this Court listen to the sound recording of those questions, I think I would have been inclined to accede to the application. The submission was made by senior counsel of the effect of his own cross-examination. At least arguably, that falls within the circumstances described by French CJ, Gummow and Kiefel JJ as making that approach appropriate: see SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [31]. It is perhaps possible, by counsel's pause and intonation, that the word "then" might have conveyed a significant temporal break between events. But no such application was made.
Based on the transcript alone, and read in the context of the questions which were asked, the temporal gap upon which the newspapers relied is far from evident. Indeed, two matters tell strongly against it.
First, the sequence of events put to Mr Smith was (a) exposure and simultaneous asking "Are you looking for this?"; (b) "then" Ms Russell put her hand to her face and walked from the dressing room; (c) "then" Messrs Gayle and Smith laughed about it. The first "then", read in context with what was being put, conveys an almost immediate response (it is inconceivable that Dr Collins was putting that Ms Russell stared at Mr Gayle for a period of time and only thereafter covered her eyes with her hands and walked away). There is no sound reason to impute any significant delay to the second "then", especially given that the second last question in the passage reproduced above separates the two uses of the word.
Secondly, there is what was said at the time. When ruling on the discharge application, the primary judge stated to Dr Collins: "HER HONOUR: The problem is, in the way in which the proposition was put to Mr Smith, I think it was put in terms that Mr McClintock couldn't possibly have recognised this coming from the text message. Because it was put as a sequential proposition that Mr Smith observed the incident, and then they laughed. There was nothing put about that occurring at a later point after she left the room and upon Mr Clark entering the room. Mr Clark wasn't brought into it at all."
That view, expressed at the time, was consistent with her Honour's reasons for judgment. The primary judge said that she had formed the view that if the questions were intended to convey that the laughter occurred not in the presence of Ms Russell, but afterwards, in the presence of Mr Clark, then it was "wholly unrecognisable as having purportedly come from the text exchange". Her Honour then stated at [103]: "Further, the matters put at [85] above were clearly put as a sequence of events. If the jury was misled as to whether Ms Russell had given inconsistent accounts as to whether laughter was a part of that sequence, that was due to the defendants' conduct of the trial."
Not only is there no inconsistency, but, doing the best I can based on the written record of the trial, I see no reason to disagree with the observations of the primary judge.

[16]

The relevance of fault

The primary judge attributed blame to the confusion on the part of Mr McClintock to the way that Mr Smith had been cross-examined. This ultimately turned on how the flow of questions was understood by her and would have been understood by Mr McClintock. For the reasons already given, I see no basis for interfering with her Honour's assessment.
The newspapers' next submission was that the primary judge erred in having regard to the question of fault. They submitted: "[W]hile questions of fault might have been relevant to the disposition of the costs incidental to discharging the jury, they were irrelevant to the question of whether the jury should be discharged."
I do not accept the submission. I see no reason why the judge's assessment of responsibility for conduct which has risked the fairness of a trial should be irrelevant. The response which is called for may sometimes be nothing, sometimes a direction, perhaps even a further opportunity to address, all falling short of a discharge. "Accidents in the course of a trial may be of infinite variety, and the appropriate remedy may vary accordingly": Croll v McRae (1930) 30 SR (NSW) 137 at 141. The authorities emphasise the width of the discretion of the trial judge. Why should culpability necessarily be irrelevant to its exercise?
The newspapers pointed to no authority in support of the proposition that fault was irrelevant to an application to discharge a jury. (To be fair, Mr Gayle pointed to no authority falsifying it.) But so far as I can see, authority is squarely against the newspapers' submission. What follows is not intended to be exhaustive.
In Taylor v Edwards [1967] 1 NSWR 689, an appeal brought from the discharge of a jury, a Full Court rejected a substantially similar, if not the same, submission, once again in the context of closing address to the jury by counsel for the plaintiff: "Then it is submitted that the judge acted not on the effect of the events on the jury but on the motives of counsel and that thereby he erred. This distinction, however logical it may be, is one that in practice cannot be sustained. Obviously a judge would not act to punish counsel for his motives except so far as the motives had an effect on the jury. It is for the trial judge to determine whether or not he can correct that effect, but he cannot look at the situation irrespective of the motive or deliberateness of the act which had led to the situation."
In Morgan itself, Kirby P said at 212, by reference to Taylor v Edwards and other authorities, that in exercising the discretion, "[t]he judge will consider whether the error is a mere slip or is part of an apparently deliberate course of conduct"; it is plain from the context that the relevance was not confined to costs but went to the question whether the jury should be discharged or directions given.
The joint judgment in Crofts v The Queen (1996) 186 CLR 427 at 440-41; [1996] HCA 22 stated: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."
If the "deliberateness of the conduct" is relevant to an application to discharge a jury in a criminal trial, I see no reason to doubt that it is relevant to an application to discharge a jury in a civil trial.

[17]

Mr Gayle's non-compliance with the rule in Browne v Dunn

The newspapers submitted that Mr Gayle's counsel had failed to comply with the rule in Browne v Dunn in two respects. The first was in failing to put to Ms Russell that she had given instructions to the newspapers' lawyers inconsistent with her evidence. The second was as to her mental state.
This was a case where it was clear, no later than when the reply was filed, that Mr Gayle was contending that Ms Russell was a "witness of no credit" who had "fabricated the allegations against the Plaintiff" and was "an unreliable witness". Further, the reply made it plain that that very serious allegation was made about Ms Russell on the basis that she had given inconsistent evidence about the reason for which she had entered the dressing room.
Those conclusions were robustly put to her at the conclusion of her cross-examination. No complaint was made that insufficient had been put to her as to the ultimate conclusion it was hoped the jury would draw. It was put to her that she had "hatched up a plot to fabricate this allegation" and that "the incident in question that you've given evidence about, Ms Russell, never happened". The complaint about the non-compliance with the rule in Browne v Dunn was to two of the bases on which Mr Gayle invited the jury to sustain the conclusion that Ms Russell was unreliable and in fact lying.
During the second and third days of the trial, a foundation appeared for the submission that there was further inconsistency in Ms Russell's recollection, namely, whether Mr Smith had seen Mr Gayle exposing himself to her, and whether she had heard Messrs Gayle and Smith laughing about it. But it was clear beyond argument that Mr Gayle's evidence and her own about what, if anything, had occurred in the Drummoyne dressing rooms were diametrically opposed, and it was clear that Mr Gayle was contending that Ms Russell was fabricating her evidence in part because she had given inconsistent accounts. I incline to the view that there was no breach of the rule in Browne v Dunn when in those circumstances Mr McClintock invited the jury to conclude that another reason why Ms Russell's evidence should be regarded as false was because of other inconsistencies in her account which had been exposed during the trial. I am conscious that this is a question of degree, and that dogmatic statements may be found for putting to the witness the basis for a rejection of his or her evidence. However, it has also been said that "The rule [in Browne v Dunn] does not apply where the witness is on notice that the witness's version is in contest": J D Heydon, Cross on Evidence (11th ed, LexisNexis Butterworths, 2017) at [17445]. Ms Russell was merely a witness, but I am confident she knew it would be said her account had been fabricated.
I think the submissions about Ms Russell's mental state fall into a different category. Immediately after they were made, Dr Collins described the effect of Mr McClintock's submission as follows: "[W]e don't have the benefit of the transcript yet, but the substance of it was, this person has a mental illness, she's frankly neurotic and what was essentially put was, because of her mental illness, you can't believe anything she says about this incident. That's, in our submission, how the jury is likely to have understood it and that's, with respect, a quite improper suggestion to have put and there's no evidence at all about the way in which the mental illness affected Ms Russell, beyond the question of food."
As it happens, Mr McClintock responded within a few seconds of that submission being made (his response is recorded on the same page of transcript). He did not cavil with how his address had been summarised, or its likely effect upon the jury. He advised that he would be "perfectly content" with a direction "where your Honour reminded them about the lie, and said that that was how it affected her conduct". I regard that response as confirming my own impression, based on the transcript alone, that the address on behalf of Mr Gayle had gone too far. It was a submission which had not been pleaded, nor particularised, nor cross-examined on, as well as being potentially prejudicial and unfounded in evidence or commonsense.
This was not fair to the witness. In a judge-alone trial, Allsop P, Giles JA and Tobias AJA said in Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [66]-[67]: "Fairness in the administration of justice extends not only to ensuring a fair trial for the actual parties but also to ensuring that a witness who is not a party is treated fairly. It is especially important in circumstances such as the present, where a witness such as Mr Schipp had himself no right to object to his credit being impugned with respect to the Centrelink representation and where he was not given the opportunity to respond to what was clearly an extremely serious allegation not only going to his credit as a witness but also, as the primary judge was at pains to emphasise, to his honesty as a person and to his probity as a solicitor and an officer of the court. Further, the unfairness consequential upon the breach struck directly at the entitlement of the appellants to a fair hearing and procedural fairness in the making of findings by the District Court. Here, fairness dictated that, in the absence of any cross-examination on the subject of the Centrelink correspondence, the primary judge refrain from making findings about dishonesty arising from that correspondence."
See further Ashby v Slipper (2014) 219 FCR 322; [2014] FCAFC 15 at [142] and State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [39]. Where as here the tribunal of fact was a jury, fairness dictated that, in the absence of any cross-examination, counsel refrain from inviting the jury to reject Ms Russell's evidence on the basis that she suffered from anorexia. I think this is different because what was said about Ms Russell's mental illness was not merely another inconsistency in her account, but a completely different basis for disbelieving her.
The reasons given by the primary judge did not in terms address the issue that it was unfair to Ms Russell and the newspapers for Mr Gayle to make a submission which had not been pleaded or particularised or opened upon or put to Ms Russell during cross-examination. Her Honour said that nothing put in Mr McClintock's submissions had been improper. I respectfully disagree. I shall return below to the direction made by her Honour at the time, which appears to have been a response to those submissions.

[18]

The test as stated in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40]

It will be clear from the foregoing that I do not accept that it was necessary for Mr McClintock to put to Ms Russell each inconsistency on which reliance would be placed in support of the submission that she lacked credibility. The newspapers relied, in written and oral submissions on a passage taken from this Court's judgment in Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [40], referring to the rule in Browne v Dunn: "Once it has been made clear that a witness's evidence to a particular effect on a given subject should not be accepted as truthful, the rule does [not] ordinarily require that it then be put to the witness in relation to each answer to that effect on that subject that the answer is untrue. The rule is a practical one designed to ensure procedural fairness from the perspective of the witness and the party calling the witness." [the word "[not]" has been added to what appears in the judgment]
Regrettably, neither the judge who wrote that passage, nor I who agreed with it, appreciated that a "not" is missing before the word "ordinarily" in the first sentence. But that is, with respect, the natural sense of the sentence. The wording "does ordinarily require" is patently awkward; why not say "ordinarily requires" where there is no occasion for the emphasis introduced by "does"?
If there were any doubt, it would have been dispelled by reading the judgment as a whole. Every judgment must be read in context.
Oneflare's appeal was dismissed. Paragraphs 34-58 addressed the complaint that the appellant had not been accorded procedural fairness, and more particularly paragraph 39 identified the appellant's complaint that there had been a breach of the rule in Browne v Dunn. Paragraph 45 stated that the "affidavit evidence exchanged before the hearing, the parties' opening statements and the cross-examination of each of Mr Dong and Mr Lim made plain that the truthfulness, not merely the reliability, of their evidence on several matters was challenged". Paragraphs 46, 47, 48 and 49 gave specific examples of differences in the evidence which went beyond differences in recollection. Paragraph 50 stated that the significance of this evidence was obvious, that one witness' evidence "could not be dismissed as merely mistaken or based on imperfect recollection" and that "The question for the primary judge was who was telling the truth". Paragraph 51 made a similar point based on what was put in opening. Paragraph 52 identified particular points that were put to the witness in cross-examination. Paragraph 53 said: "At the conclusion of Mr Dong's cross-examination, the primary judge confirmed, in response to a question from Mr Chernih's counsel, that there was no need to take the witness through each conversation with Mr Lim or Mr Chernih that was disputed. It was expressly noted that 'the rule in Browne v Dunn is amply satisfied when competing affidavits are put on'. That short exchange assumed, as was otherwise obvious, that the credibility of much of the evidence of Mr Dong and Mr Lim, as well as that of Mr Chernih, was in issue."
Paragraph 54 identified particular matters in which Mr Dong was given an opportunity to give an explanation, and continued: "With respect to each, he was given an opportunity to explain what he maintained the position was. It was not necessary in that context for the cross-examiner to put to him that his evidence was deliberately evasive or false. It was plain for the reasons I have already given that his evidence on that general subject was challenged as untruthful."
It is regrettable that a word was omitted in the Oneflare judgment. However, it is plain that the force of Oneflare is that it is not necessary to put a series of particular matters to a witness where there has been full opportunity to provide an explanation. It is not possible to reconcile that reasoning, and, especially, the conclusion at [54], with the absence of a "not" in the paragraph on which the newspapers relied.

[20]

Failure to deal with submissions on malice

It may be doubted whether the reasons of the primary judge addressed the gravamen of the complaint based on Mr McClintock's address on malice. I would infer that both parties were somewhat surprised when on the afternoon of the 4th day of the trial the primary judge departed from her earlier decision in Daniels and did not leave reasonableness to the jury. It did not follow without more that Mr Gayle was entitled to address on malice by reference to the matters which had been particularised as only relevant to reasonableness. It is one thing for evidence to be adduced without objection relevant to reasonableness. The evidence was adduced without limitation and could be used for any purpose upon which it bore. But it is another thing for a case of malice to transcend the precise particulars which had been given.
By finding that the newspapers ought to have well appreciated by the end of the trial the way in which the case on malice would be put, the primary judge was in substance finding that this was a case where by conduct Mr Gayle had been permitted to expand the basis on which he would put malice to the jury. Of course, there are times when "parties choose to disregard the pleadings and to fight the case on issues chosen at the trial": Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70. But the four matters to which her Honour referred in [108] of her judgment reproduced at [88] above do not, with respect, bear that out.
The first, second and fourth of those matters are readily dealt with. It had been made clear that the "intention to damage" interrogatory would be relied on, no later than from Mr Gayle's opening, a course to which the newspapers had consented or, at least, acquiesced, and of which they made no complaint. The recklessness in publishing the allegations when the newspapers knew there had been a witness but did not seek to contact that witness was the first particular of malice. Summarising the matters relied upon in respect of reasonableness in support of Mr Gayle's no case submission did not expand the way in which Mr Gayle was entitled to put his case on malice.
The remaining matter was "emphasising throughout the trial that the plaintiff saw the reasonableness evidence and the malice evidence as being interchangeable". "Throughout the trial" picks up the two points identified by Mr Gayle, which were the passages at pages 75 and 112 of the transcript reproduced above at [73] and [74], foreshadowing the absence of objections to the newspapers' testimonial evidence on reasonableness. Mr Gayle made no submission that at any other time was the trial conducted on this basis, and the primary judge did not refer to any other part of the trial.
Considerable deference is to be given in a case such as this to the observations of the judge conducting the trial. But ultimately the question for this Court is whether as a matter of substance, and making due allowance for the considerable advantage enjoyed by the primary judge, it should be concluded that Mr Gayle's case had expanded beyond that which had been pleaded. Ordinarily, that would not be the case. Both the points on which Mr Gayle and the primary judge relied were directed to the admissibility of evidence, not the case to be advanced. This Court said in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [22]: "That a defendant may choose not to object at a trial to evidence going beyond the plaintiff's particulars or that the court may at a trial give a plaintiff leave to amend his or her particulars, does not derogate from the principle that the plaintiff's pleadings and particulars define the ambit of his or her case and thus provide a proper basis for assessing whether the plaintiff's case should be permitted to go to trial."
The primary judge acceded (at [110]) to Mr Gayle's submission that there could have been no substantial risk of procedural unfairness and that to adjourn the proceedings for the purpose of amending the pleading at that point would have been an overly technical approach inconsistent with the objects of ss 56-58 of the Civil Procedure Act 2005 (NSW). I do not regard that as an answer to the actual and apparent unfairness of one side addressing the jury on aspects of a case of malice, and the other side not doing so. Her Honour's reasons do not, with respect, engage with the difficulty propounded by the newspapers, which was an imbalance in the subject matter of counsels' addresses to the jury, brought about because the newspapers, in my view correctly, regarded Mr Gayle's case on malice as confined to what was particularised (plus the interrogatory), while Mr Gayle addressed on the basis of all of the evidence adduced as to reasonableness.

[21]

Should the jury have been discharged?

For those reasons, I have concluded that errors attend the reasons given by the primary judge for refusing to discharge the jury. That of itself is not sufficient to warrant intervention. As Clarke JA said in Morgan v John Fairfax & Sons Ltd at 237: "[A]ppellate courts should exercise great caution in considering whether a trial judge erred in discharging, or declining to discharge, a jury, give weight to a trial judge's opinion and interfere only in rare cases in which error has been clearly demonstrated. Furthermore, because of the position of advantage enjoyed by the trial judge the appellate court will interfere even if error is exposed only if the error is of such a nature that to allow the decision to stand would be inimical to the interests of justice."
One of the citations given by his Honour was to a passage in the judgment of Dixon J in Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 at 216-217; [1935] HCA 82: "But when some fact or matter which should be excluded from the jury's consideration of a case is discussed before them, it is in the first place for the Judge presiding at the trial to decide what is the appropriate and sufficient remedy to apply. If what is communicated to the jury is not so prejudicial as in the opinion of the trial Judge to make it unsafe to proceed with the trial, and in the result the party whose interests may be adversely affected fails to obtain the verdict, it remains open to him to complain upon a new trial application that, notwithstanding the measures taken by the Judge to remove the prejudice, there has been a miscarriage. But the Court of appeal would give great weight to the opinion of the trial Judge and his exercise of discretion, and would be justified in setting aside the verdict only if, upon a consideration of the whole case, the proper conclusion appeared to be that the trial had miscarried."
What was said in those passages by Dixon J and Clarke JA has been followed by Ashley, Redlich JJA and Coghlan AJA in Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478; [2008] VSCA 244 at [128] and by Whelan JA, with whom Tate JA agreed, in Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (2014) 42 VR 236; [2014] VSCA 3 at [200(c)]. It also accords with what Walsh JA said in Justin v Associated Newspapers [1967] 1 NSWR 61 at 84: "But the real question in a new trial motion is whether there is good reason to suppose that in the end the jury has not performed its function and has not well and truly tried the issues joined between the parties. One ought not to be too ready to think that the jury has been hoodwinked or led astray, if the verdict given does not itself suggest the likelihood of this and if the summing-up has been a satisfactory one."
Having considered the entirety of the matters complained of by the newspapers, I do not consider that the trial has miscarried.
First, and favourably to the newspapers, my analysis proceeds on the basis which was accepted at trial: (a) that Dr Collins in fact had cross-examined Mr Smith on laughter, and had sought to elicit evidence from Ms Russell on laughter, based on the text message, and (b) that Mr McClintock had in fact addressed the jury based on his perception that Ms Russell had at one stage provided information to him or his instructors that she had heard laughter. The primary judge accepted both senior counsel's statements to that effect, and each made plain that they did not dispute what the other said.
Secondly, the gravamen of Mr McClintock's address was not so much whether or not there was laughter in the dressing room, but the composite proposition that Ms Russell's evidence in court about Mr Smith watching the incident and laughing about it with Mr Gayle was inconsistent with what had been put to Mr Smith. Repeatedly in Mr McClintock's address to the jury, the two aspects were joined: 1. "On Tuesday Dr Collins suggested to Dwayne Smith that he saw what Russell said happened and he laughed about it." 2. "In other words, she had said to Dr Collins that was her version at the time, that Smith was an active participant in the incident. He thought it was funny, in other words, but the point is he saw it and he reacted to it with laughter." 3. "[O]n Tuesday, Smith sees the exposure, thinks it's funny, laughs about it. On Wednesday, in her evidence-in-chief, he didn't see it, and didn't laugh about it. It is absolutely clear that in the witness box, Russell gave a totally new and inconsistent version of Mr Smith's involvement. The two can't stand together. He either saw it, and thought it was funny, or he didn't see it, and didn't laugh."
Thirdly, and once again favourably to the newspapers, I would not be so critical of the cross-examination of Mr Smith as the primary judge. I do not accept that there was any error in her Honour proceeding on the basis that what was put to Mr Smith was a single sequence of events. However, I can see a basis in the text message ("[gayle] and smithy were laughing about it as i walked in thereafter") for putting to Mr Smith that he had been laughing and for asking Ms Russell whether she heard anything.
Fourthly, and more importantly, I do not accept that the factual error which occurred, in relation to the second part of the composite proposition that Ms Russell's account had been that Mr Smith had seen the incident and laughed about it with Mr Gayle, was of any especial moment. In the way Ms Russell's evidence came out in chief, there was a serious inconsistency as to what she said as to Mr Smith witnessing the incident. The jury had to have regard to that inconsistency in evaluating the clash of evidence between her and Mr Gayle. Whether the inconsistency was merely as to Mr Smith seeing the incident, or alternatively as to Mr Smith seeing the incident and laughing about it, is much less significant than the fact that Ms Russell gave materially inconsistent accounts of the crucial incident in the trial.
Fifthly, this point of itself did not warrant discharging the jury. I respectfully agree with the primary judge that if a direction were to be made dealing with the source of instructions as to laughter and the submissions which were made on a false basis, then the direction had also to deal with the other half of the composite proposition. The fact that the newspapers chose not to obtain a direction which extended to both halves of the proposition is a further matter to be borne in mind.
Sixthly, while I have respectfully concluded that her Honour's reasons did not fully address the newspapers' submissions based on what was said in Mr Gayle's address as to (a) malice, (b) Ms Russell's mental state, and (c) the cumulative effect of all the points complained of, it by no means follows that the verdict must be set aside.
It must steadily be borne in mind that the primary judge gave directions to the jury as sought by the newspapers (albeit by way of fallback submission) to address the excesses of Mr Gayle's closing address. The directions were given immediately before the jury retired. The directions relating to malice were lengthy, and adhered to what had been proposed by the newspapers. The recitation by the judge of the evidence, using the order and substantially the language drafted by the newspapers, immediately before the jury retired, and with the imprimatur of the judicial umpire rather than the partisan counsel, must have ameliorated the unfairness occasioned by Mr Gayle's counsel's departure from the pleaded case. The primary judge said of Ms Russell's eating disorder that Mr McClintock's submission should be treated by them as a very narrow one, connecting her lie about why she was entering the dressing room with her evidence of what happened thereafter, rather than any broader submission about people suffering from eating disorders being more prone to lie. It is to be presumed that the jury followed this direction, especially as it was given immediately before their deliberation, and some five days after Mr McClintock's address. Insofar as Mr McClintock's address went beyond what was put to Ms Russell, the direction that it be disregarded sufficiently cured the breach.
It is necessary to consider all the matters of which the newspapers complain cumulatively, but also in light of the directions that were in fact given, and the newspapers' decision not to seek a direction dealing with both aspects of the composite proposition as to what Mr Smith saw and then laughed about. Doing so, I do not conclude that the jury's verdict should be set aside.

[23]

Reasons of the primary judge

Her Honour addressed damages (including aggravated damages) at [6]-[45] of her judgment. Save for one discrete point (ground 6), no complaint is made about the compensatory damages of $300,000 awarded. Two matters may be noted in relation to her Honour's reasons on compensatory damages. First, her Honour addressed the consequence of the jury's verdict of malice at [24]: "As already noted, the jury found that the defendants were actuated by malice at the time of publication. Section 36 of the Defamation Act provides that the Court is to disregard the malice or other state of mind of the defendant at the time of publication except to the extent that it affects the harm sustained by the plaintiff. The evidence of malice came principally in the defendants' case, coinciding with their evidence as to the reasonableness of their conduct for the purpose of the defence of qualified privilege. The plaintiff gave no evidence in reply and, in particular, no evidence that the hurt and harm he suffered was increased as a result of the matters canvassed during the defendants' case. Accordingly, in accordance with s 36, I have disregarded the defendants' malice in my assessment of damages."
Secondly, it is relevant to note that at [29], her Honour stated that "the evidence on hurt feelings was surprisingly compelling" and her Honour recorded part of Mr Gayle's evidence directed to his response to the publications.
Her Honour addressed aggravated damages at [35]-[41]. Her Honour identified five bases put forward by Mr Gayle for aggravated damages. The first was the newspapers' knowledge of the falsity of what had been published, but her Honour noted that Mr Gayle had conceded that the defence of truth was not unmeritorious. There was no dispute that such a concession had been made, and so this matter may be put to one side. The remaining four matters were the newspapers' conduct in "presenting the matters complained of in an over-sensationalised manner", their "failure to publish an apology despite a reasonable request", "the republication of the matters in other jurisdictions" and the "engaging by the defendants in a smear campaign against the plaintiff, evidenced by the publication of the defamatory imputations particularised in respect of each of the 28 matters complained of."
Her Honour recorded that Mr Gayle had not adduced evidence of most of those matters. Particular attention was given in oral submissions to [37] of the reasons: "Upon analysis, in the absence of specific evidence of increased hurt to feelings, a number of the matters pointed to by the plaintiff are ordinary features of the assessment of general damages. It will of course be necessary in assessing those damages to have regard to the continuing campaign of publication of the allegation over several days; that informs the seriousness of the defamation. However, I am not persuaded that the matters relied upon by Mr Gayle in the pleading warrant an award of aggravated damages."
The remaining paragraphs of this part of the judgment address a press release published by one of the newspapers after the jury's verdict, which referred to the primary judge's refusal of the application to discharge the jury. The press release attributed the following statement to "A Fairfax Media spokesperson": "Fairfax Media is concerned with the conduct of the trial to the extent that on Friday it sought an order that the Jury be discharged and a new trial ordered. The Judge accepted that the Jury had been misled in a way that prejudiced Fairfax, but declined to discharge the Jury. Fairfax believes that it did not get a fair trial. It is seriously considering its appeal rights."
The primary judge addressed a submission that by questioning the fairness of the trial, the newspapers were necessarily endorsing the truth of the imputations, contrary to the jury's verdict, which was a matter which was relevant to damage. But her Honour addressed that submission insofar as it was relevant to aggravated damages at [41] by noting, once again, that no application had been made to adduce any further evidence from Mr Gayle after the press release had been reported. Her Honour stated that she did not think she could speculate as to its effect on Mr Gayle. Her Honour noted that more than one inference was available, and that in fact, "such an expression of soreness by his defeated opponents may well have sweetened the victory".

[25]

Ground 6 - error in discounting the indicative damages awards?

A discrete point was made by ground 6 of the cross-appeal. That related to the fact that, in the interests of transparency, her Honour identified that had there been individual claims against each of the three newspapers, she would have assessed the damages against The Age Company Pty Ltd in the amount of $250,000, against Fairfax Media Publications Pty Ltd in the amount of $200,000 and against the Federal Capital Press of Australia Pty Ltd in the amount of $100,000. Her Honour then added, at [45], that: "it is necessary to stand back from the sum of those amounts so as to avoid double or triple compensation, while also bearing in mind that the syndicated publication of the articles by each defendant did increase the scope of publication and cause some separate hurt and harm to Mr Gayle. Taking the holistic approach contended for by the defendants, I consider the appropriate total award to be an amount of $300,000."
Mr Gayle complains that "there is no exposition of her Honour's reasoning". He complained that the extent of the reduction from the hypothetical to the actual (from $550,000 - being the sum of the three specific amounts - to $300,000) awarded seemed "disproportionately large". He emphasised that it might be presumed that there was relatively little overlap in readership for three publications in discrete geographical areas.
These grounds amount to a challenge to an essentially impressionistic evaluation of damages compensating for the defamatory publication. Those damages extend to the "consolation for the personal distress and hurt caused … by the publication, reparation for the harm done to [personal reputation] and vindication": Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; [1993] HCA 31. The process is "essentially a matter of impression and not addition": Broome v Cassell & Co [1972] AC 1027 at 1072. The award is the product of a mixture of inextricable considerations: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; [1966] HCA 40.
Once again, I see no basis for interfering with the primary judge's assessment.

[26]

Grounds 1-4

The remainder of Mr Gayle's case on the cross-appeal was only developed in written submissions. In part those submissions go beyond the notice of cross-appeal, insofar as complaint is made of one aspect of the newspapers' defence, namely its plea that Mr Gayle had a bad general reputation in relation to respect for women. Although it is true that her Honour did not expressly deal with this submission, it falls within the scope of her Honour's reasons to the effect that Mr Gayle failed to give specific evidence of increased hurt to his feelings. It is to be borne in mind that a relatively large amount of damages was awarded (relatively close to the statutory cap provided by s 35 of the Act), in circumstances where the primary judge was, explicitly, impressed by Mr Gayle's evidence of his reaction to the publication.
Mr Gayle's further submission that the jury's finding that the publications were malicious warranted a finding of aggravated damage was addressed by what her Honour said at [24] in relation to compensatory damages, reproduced above.
Mr Gayle's submissions in chief made no reference to s 36 of the Defamation Act, on which the newspapers relied in their submissions, as well as pointing to the decision of the Queensland Court of Appeal in Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89; [2014] QCA 33 at [40]. There it was said, by reference to s 36, that: "Thus malice or a reckless indifference to the truth or falsity of the publication does not warrant, of itself, an award of aggravated damages. However, if the plaintiff is aware of the defendant's state of mind and this aggravates the plaintiff's hurt feelings, then damages may be increased in order to appropriately compensate. If the defendant's conduct is improper or unjustifiable, this aggravation may be reflected in a separate award of aggravated damages."
It will be seen that the reasons of the primary judge at [24] align with that formulation of principle.
Mr Gayle's submissions in reply on the cross-appeal were entirely (save for paragraphs 1 and 2), directed to this point. However, no submission was made that Cerutti should not be followed in this Court. Indeed, no mention was made of that decision. As already noted, no oral submissions on this ground were made by Mr Gayle at all. In those circumstances, no foundation has been made to depart from what was said by the Queensland Court of Appeal. And in the absence of any evidence in reply from Mr Gayle, there is no basis for impugning her Honour's failure to infer that the newspapers' malice aggravated Mr Gayle's hurt feelings.
For those reasons, the cross-appeal should be dismissed.

[27]

Ground 5 of the appeal

This ground contended that the primary judge erred in determining that the question of reasonableness for the purposes of s 30(1)(c) was a question for the judicial officer, and not the jury.
Section 30(1) provides as follows: "30 Defence of qualified privilege for provision of certain information (1) There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: (a) the recipient has an interest or apparent interest in having information on some subject, and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances."
As a matter of authority, no decision of this Court resolves this point. It first seems to have arisen in Davis v Nationwide News Pty Ltd (2008) 71 NSWLR 606; [2008] NSWSC 699, where McClellan CJ at CL gave brief reasons for a non-dispositive ruling. By reference to what Glass JA had said in Austin v Mirror Newspapers Ltd [1984] 2 NSWLR 383 at 387, he stated that "[a]t general law the question of reasonableness of the conduct of the defendant for the purpose of the defence of qualified privilege was a matter for the judge", and concluded that s 30(1)(c) was for the judge in light of s 22(5)(b) (which is addressed in detail below). That view was assumed to be correct, without deciding the point, in Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [28].
Subsection 30(2) specifies necessary and sufficient conditions for an apparent interest within the meaning of s 30(1)(a). Subsection (3) identifies ten matters which "the court" may take into account in assessing whether the publication was reasonable in the circumstances, for the purposes of s 30(1)(c) (I shall return below to the possible significance of the words "the court"). The first and fifth of those matters are "the extent to which the matter published is of public interest", and "whether it was in the public interest in the circumstances for the matter published to be published expeditiously." The remaining eight are factual matters (including the seriousness of the imputation, the sources of the information and their integrity, the steps taken to verify the information and whether the person's side of the story was published or whether reasonable attempts were made to obtain and publish a response).
Subsection 30(4) makes it clear that the defence of qualified privilege under s 30(1) is defeated if the plaintiff proves the publication was actuated by malice. This gives rise to a threshold issue of the utility of the appeal, having regard to the jury's verdict.

[28]

Should this ground be determined at all?

Mr Gayle's threshold submission was that the ground "only arises if the jury's finding on malice is set aside". There was no separate challenge to the jury's verdict that the newspapers were actuated by malice. However, if the whole of the verdict is set aside and there is a retrial, as sought by the other grounds of appeal, this ground will affect the issues left to the jury at the second trial.
If (as I have concluded above) the other grounds of appeal have not been made out, this ground does not affect any order made at first instance. It is true that if this ground is made out, then another issue should have been left to the jury in October 2017. However, there is no basis for thinking that, had that course been taken, any different result would have been reached. The evidence would have been the same. No orders were made during the trial limiting the use that could be made of any of the evidence. Indeed, the trial seems to have proceeded on the basis that the primary judge was expected to follow her earlier ruling.
If the newspapers are correct, and reasonableness should have been determined by the jury, the closing stages of the trial would have been different. The parties would have addressed, and the primary judge would have summed up, on reasonableness. It is possible that had separate attention been given by Dr Collins, addressing first, to reasonableness and malice, something might have been said about the narrower scope of the defence of malice as pleaded and particularised, with the effect of altering or perhaps even forestalling the events which gave rise to ground 2. But it is equally possible that Dr Collins may not have done so, because he would have been conscious not to complicate matters for the jury, especially where there may have been no good answer to an application to supplement the particulars of malice. All this is speculation, and provides no sound basis for thinking that the jury's verdict of malice would have been altered. To be fair, the newspapers did not make any submission to that effect, and candidly accepted the fact that the ground might, depending on the fate of grounds 1-4, not be dispositive.
That said, although there is no universal rule, this Court should consider whether to deal with all grounds of appeal, not merely the decisive grounds of appeal: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]. The question is a pure question of law, and of general application, in (largely) uniform legislation. At present, the authorities are unsettled, which is apt to present difficulties in the running of trials. If the submissions advanced in this Court had permitted me to resolve this ground satisfactorily, then I would have done so.
Ultimately, I have concluded that it is inappropriate to determine this ground. In order to explain why, I need to explain the course taken by the primary judge and how the legislation operates.

[29]

The reasons of the primary judge

The primary judge ruled on the issue on the Thursday afternoon, after the evidence had closed and after Mr Gayle's no case submission on reasonableness had been rejected. Her Honour said this: "[T]he process of considering the no case submission has helped crystallise my thinking about the question of whether reasonableness should be determined by the jury and I have come to the conclusion that if it were a matter for the jury, there would be evidence capable of leading to the jury, but I have round, back around to your side of that argument, Mr McClintock. I now think, having analysed more closely those factors under subs (3), and then going back to Popovic, that I am bound by Popovic to determine the element of reasonableness. I think perhaps because the element of reasonableness is a component of that form of the defence, inseparable from interest, apparent interest and so on. The conclusion I have reached is that I will not leave reasonableness to the jury, not because there is no case to answer - I think there is - but because I have come round to your view that it is not a question for the jury and I will publish my reasons for both of those rulings hopefully shortly."
Her Honour delivered formal reasons at the same time as delivering judgment on damages and providing reasons for refusing to discharge the jury.
The primary judge stated that she was conscious that her earlier decision in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074 (which had reached the opposite conclusion from Davis v Nationwide News Pty Ltd) had received some qualified support from the Victorian Supreme Court in Wilson v Bauer Media Pty Ltd [2017] VSC 521 but that the opposite conclusion had been reached in Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 and, in particular, in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161. Her Honour's conclusion was influenced by those decisions (at [71]-[72]): "My consideration of those Victorian decisions led me to conclude that, contrary to the conclusion I reached in Daniels, the requirement of reasonableness under s 30(1)(c) is not a discrete factual issue that can be carved out for determination by the jury while the matters in s 30(1)(a) and (b) are determined by the judge. I concluded that reasonableness is, rather, an integral aspect of the composite question whether there is a defence of qualified privilege of the kind recognised in the section. For those reasons, I formed the view that Popovic, if not strictly binding (since it does not deal with s 30), should be applied by me as providing strong support for the proposition that it is for the Court to determine whether the three matters listed in s 30 are proved so as to establish a defence of qualified privilege. The element of reasonableness may, depending upon the circumstances of the case, require the jury to determine any dispute as to the primary facts. As explained by Hunt J in Barbaro v Amalgamated Television Services Pty Ltd [1985] 1 NSWLR 30 at 39 (cited in Popovic at [111]), that would extend to questions such as whether a particular event occurred or what was said or done, but it would not extend to drawing a conclusion as whether the element identified in s 30(1)(c) was proved."
Her Honour recorded at [73] Dr Collins' submission that Popovic was "plainly wrong" in its reading of Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 in light of the fact that (former) Defamation Act 1974 (NSW) s 7A required all defences to be determined by the judge, but stated that it was "by no means clear to me that the Court in Popovic would have reached a different conclusion had it adverted to that fact (assuming it did not)" and that Winneke ACJ had reached the same conclusion by a different path. She concluded her reasoning at [74]-[75]: "I did not find this issue easy to determine during the trial. The proposition that a whole statutory defence is carved out of a provision that assigns the determination of 'any defence' to the jury faces the conceptual difficulty of the exception swallowing the rule. On the approach I took in Daniels, two of the three elements of the defence referred to in s 30 would be determined by the judge while the third (reasonableness) would be determined by the jury. However, upon analysis, those elements necessarily inform each other. In particular, the measure of the reasonableness of the publisher's conduct is appropriately informed by considering the nature of the interest or apparent interest found. Further, as submitted by Mr McClintock, there are other statutory indications in favour of reserving the whole defence to the judge rather than the jury, in subsection 30(3). That section provides a list of factors relevant to the assessment whether the defendants' conduct in publishing the matter complained of was reasonable in the circumstances. Some are matters which, if not questions of law, are at least in the category of questions which the law has traditionally reserved for the Court rather than the jury, particularly subsections (a) and (e), which are concerned with the 'public interest'. There is, for that reason, a degree of artificiality in having the elements of the defence severed for determination by different tribunals."
It will be seen that the primary judge relied upon the precedential weight of the Victorian authorities, and accepted Mr Gayle's submission that the express inclusion within s 30(3) of matters bearing upon public interest picked up matters which "the law has traditionally reserved" for the judge rather than the jury. I shall return to each of these matters in due course.

[30]

The functions of judge and jury

The question raised by ground 5 falls to be determined by statute. Section 22 of the Act and its counterparts in other jurisdictions (save in South Australia, the Australian Capital Territory and the Northern Territory where there are no civil juries) relevantly provide: "22 Roles of judicial officers and juries in defamation proceedings (1) This section applies to defamation proceedings that are tried by jury. (2) The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. ... (5) Nothing in this section: (a) affects any law or practice relating to special verdicts, or (b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer."
Subsections (2) and (5) employ the language "is to determine" and "is to be determined". Those words connote a requirement or obligation. Subsection (2) imposes an obligation upon juries to determine defences. Subsection (5) limits that obligation, by excluding its operation to cases where there is an obligation "at general law" for the judicial officer to determine an issue.
Plainly enough there is the potential for conflict between the things the jury is required to do by reason of s 22(2), and the things the judicial officer is required to do because of a pre-existing obligation at general law preserved by s 22(5). It seems plain that the starting point as a matter of construction is the last sub-section, s 22(5). The opening words, "Nothing in this section", are hierarchical words, which is to say, words whose sole purpose is to confirm that sub-section (5) takes precedence over sub-sections (1)-(4). Those words negative any implication that anything else in s 22 narrows the effect of sub-section (5); cf Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; [1979] HCA 26.
Sub-section (5)(b) applies to any "issue that, at general law, is an issue to be determined by the judicial officer." In cases such as the present where the question arises in connection with a defence, the question posed by subsection (5) is whether "general law" requires the judicial officer as opposed to the jury to determine any issue. If not, then the rule otherwise imposed by subsection (2), that the jury determines whether the defence has been established, applies. If so, then the force of subsection (5) is not only that the jury is not required to determine that issue, but also that the jury is not permitted to determine that issue. (For completeness, I note that the provisions are silent as to the consequences of a misapplication of the rules allocating roles to judge and jury. It will not be necessary in these reasons to address this.)
I would readily infer that it was the application of s 22(5)(b) to cases where general law imposed a requirement upon judges to determine issues which influenced the primary judge's reasons insofar as they turned upon s 30(3)(a) and (e), relating to public interest, being matters which were said "traditionally" to have been determined by a judge and not by a jury. I would also infer that s 22(5)(b) was what caused her Honour to have regard to what was said in Popovic (a decision predating the uniform legislation) as to the role of judge and jury.
Section 22 distinguishes between "jury" and "judicial officer". As noted above, s 30(3) identifies ten matters which "the court" may take into account in assessing reasonableness. True it is that, in some contexts, the word "court" invokes the judicial officer, as opposed to the jury. However, the word takes its meaning from the context, as is confirmed by the statement in a substantially similar context in Kesavarajah v The Queen (1994) 181 CLR 230 at 242; [1994] HCA 41 (namely, whether the judge or the jury determined whether an accused was unfit to stand trial) that the word "court" may "mean the court consisting of both judge and jury, the judge or the jury". The use of the word "court" in s 30(3) is not determinative, and it may be doubted whether it is especially significant, in resolving the question raised by ground 5. So far as I can see, none of the decisions which have considered this issue has placed weight on the use of the word "court" in s 30(3).

[31]

The defence created by s 30

Section 30 falls within Division 2 of Part 4 of the Act. Division 2 comprises ss 24-33. Section 24(1) makes it plain that the defences within Division 2 are additional to any other defence or exclusion of liability available to the defendant apart from this Act. It provides: "24 Scope of defences under general law and other law not limited (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability."
It will be necessary to return to the deceptively simple term "general law" below. Section 24 should be construed as bearing its ordinary meaning, directed to forestalling any submission that the specification of a statutory defence, even if closely resembling a defence at general law, and even if it is given a name identical to that known at general law, is to be regarded as exhaustive or "covering the field". That is to say, s 24 is antithetical to any inference that the defences in Division 2 constitute a code. This accords with what was said of the similarly worded s 11 of the Defamation Act 1974 (NSW) in Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; [2010] HCA 25 at [14].
The remaining sections, ss 25-33, identify particular defences. Section 30 commences, "There is a defence of qualified privilege for the publication of defamatory matter to a person". The effect of s 24 upon s 30 is that the statutory defence of qualified privilege is cumulative upon the defences of qualified privilege already existing as a matter of general law, which had long been known as "qualified privilege".
Plainly enough, whether the defence created by s 30 is established is to be determined by the jury, pursuant to s 22(2), unless somehow that outcome is affected by s 22(5)(b). It might seem improbable that "general law" imposes an obligation upon a judge to determine a newly created statutory defence. But it will be seen that while s 22(2) refers to whether a defence is established, s 22(5)(b) more narrowly refers to the determination of an issue. It is natural for defences, whether or not sourced in statute, to involve a number of issues. For example, the defence in s 30 is only made out if the issues identified in each of paragraphs (a), (b) and (c) of s 30(1) are established. If one or more of the issues involved in the new statutory defence were the same as, or perhaps even if they merely closely resembled, issues known to general law which were required to be determined by the judge, then one might see how s 22(5)(b) could apply to an issue which is part of a statutory defence.
Even so, I find it very hard to see, as a matter of construction of s 22, how the entirety of a statutory defence could be determined by a judge, in the face of s 22(2) and the insistence in s 24 that statutory defences are in addition to defences at general law.
What is abundantly clear is that in order to identify the scope of operation of s 22(5)(b), it will be necessary to identify the relationship between the defence created by s 30 and earlier defences on which it is based or which it resembles, and the general law.

[32]

Qualified privilege at common law in Australia

The "four distinct and mutually incompatible approaches" to the defence of qualified privilege at common law as developed by the late nineteenth century are described in P Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005), pp 162 and A Kenyon and S Walker, "The Cost of Losing the Code: Historical Protection of Public Debate in Australian Defamation Law" (2014) 38 Melbourne University Law Review 554 at 559-561. This Court made much the same point in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 778 when stating that Mellish LJ "rather euphemistically" stated in 1877 that the "law on the subject of privilege is clearly defined by the authorities". Sir Samuel Griffith's Defamation Law of Queensland (1889) (53 Vic No 12) responded to the difficulties which had arisen at common law. Passing over the limited statutory defence enacted for the publication of parliamentary proceedings in good faith and without malice made by s 9 of the Law of Evidence - Parliamentary Printer's Protection Act 1849 (NSW) (13 Vic No 16, consolidated in s 22 of the Defamation Act 1901 (NSW)), an approach more closely reflecting the "qualified protections" in Griffith's legislation was enacted in New South Wales as Division 2 of Part IV of the Defamation Act 1912 (NSW) as ss 28-30. They included newspaper reports made in good faith for the information of the public (s 29). Speaking of the Queensland antecedent, s 377(3) of the Code, which required the publication to have been made in good faith and "for the public good", Evatt J writing for a majority of the High Court in Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 657-8; [1934] HCA 15 said that in determining whether a publication was "for the public good", all the surrounding circumstances must be weighed and considered, and "as Queensland practice shows, such question should be determined by the Court, any relevant facts that are in dispute being found by the jury".
A convenient summary of the position over the middle decades of the twentieth century may be found in Mason J's judgment in Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 329; [1975] HCA 47: "At common law it is well accepted that the question whether an occasion is the subject of qualified privilege or not is for the judge to determine as a matter of law, it being for the jury to determine any disputed issues of fact on the resolution of which the ultimate question of law may depend (Watt v Longsdon [1930] 1 KB 130 at 153; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 646, 657). On the other hand, at common law it is for the jury to decide whether the publication was made otherwise than in good faith, provided that there is evidence on which they could reasonably come to a conclusion favourable to the plaintiff. The burden of proof of the absence of good faith is placed by the Act, as it was by the general law, on the plaintiff (s 18). From this it sufficiently appears that the issue of good faith is an issue of fact for the jury."
The Defamation Act 1958 (NSW) had two novel elements relevant for present purposes. First, s 17 reverted to the language of the Queensland legislation and referred to "qualified protection" rather than "qualified privilege", and included in paragraphs (c) publications "for the public good" and in (h) for the discussion of "some subject of public interest", the public discussion of which was "for the public benefit". Secondly, s 19, which remained unamended throughout the lifetime of the 1958 Act, provided: "Whether any defamatory matter is or is not relevant to any other matter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact."
Section 19 was a little oblique and a little controversial. The reference to "questions of fact" identified matters for the jury. Windeyer J's judgment in Australian Consolidated Press Ltd v Uren reproduced the section at 207 and his analysis at 208-209 confirmed that matters which were "expressly declared to be matters of fact" were "thus for the jury". Were there any doubt about this, it is resolved by what was said of the identical language of the Queensland Criminal Code in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 197 and 214; [1996] HCA 47. But what of the distinction between "public benefit" and "public interest"?
A paper delivered by Justice Walsh (to which Mason J referred in Calwell v Ipec Australia Ltd at 329) generally took the line that too much attention had been given to the doctrines developed at common law, rather than starting with the language of the statute: C Walsh, "The Defamation Act 1958 and the Common Law" (Council for Advanced Legal Studies, NSW). However, his Honour noted that in the same paragraph (s 17(h)) the expressions "public interest" and "public benefit" were both used, while s 19 spoke only of "public benefit", and said at p 23 that it: "is probably correct to say that when it has been proved or admitted that the publication was in the course of the discussion of some subject, it is for the Judge to determine whether or not that subject was of public interest. The choice of the expression 'public interest' may be regarded as indicative of the intention to preserve the common law rule on this point in respect of the division of the functions between Judge and jury."
Whether or not s 19 distinguished between "public interest" and "public benefit", reserving for the jury the latter but not the former, was not so far as I can see decided by any decision of the High Court. Nothing turns on that because, as will be seen below, what matters is the position prior to 1958, and so it is possible to pass over some of the nuances of the 1958 statute.
I now turn to the 1974 Act, which included in ss 20, 21 and 22 various defences of "qualified privilege". Section 22 has especial relevance to this appeal, because s 22 is the immediate precursor to s 30 of the 2005 statute, as well as having been invoked in Lange in support of a requirement of reasonableness at common law. I shall turn to this in detail below. For present purposes, it is convenient to deal directly with ss 12 and 23 of the Defamation Act 1974 (NSW), provisions which remained in force until 1995 when they were repealed by the Defamation (Amendment) Act 1994 (NSW) which introduced s 7A. Sections 12 and 23 provided: "12. Where proceedings for defamation are tried before a jury, and, on the facts, there is a question whether any comment or other imputation, or any notice, proceedings or report is or relates to a matter of public interest for the purposes of this Act, that question is to be determined by the court and not by the jury. 23. Where proceedings for defamation are tried before a jury and, on the facts, there is a question whether there is a defence of qualified privilege under this Division, that question is to be determined by the court and not by the jury."
The 1974 Act was the product of a NSW Law Reform Commission Report (LRC 11, 1971). The Report included proposed legislation, which closely resembled what was enacted. Of proposed s 12, it was said (p 91): "The Defamation Act, 1958, uses the expressions 'public benefit', 'public interest', 'public concern' and 'public good'. These exemplify a tendency towards a proliferation of conceptions all related to public interest but differing in formulation. They do not necessarily differ in substance but they do call for exploration to determine questions of possible differentiation. The complexity so caused is not justified by considerations of substance. The reasons for the variety appear to be rather historical than substantial. The Bill selects as a general criterion 'public interest'. Whether a matter is of public interest has at common law been a matter for the court. Section 12 provides that it shall remain so."
In 1995, ss 12 and 23 were repealed and s 7A enacted. Section 7A made elaborate provision for the determination by a jury whether an imputation was conveyed by a matter complained of, but only if it was determined that the matter was reasonably capable of carrying the imputation pleaded and the imputation was reasonably capable of bearing a defamatory meaning. Subsection 7A(4) addressed the question of defences: "If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established; and ..."
Thus all aspects of all defences were left to the judge, including disputed questions of primary fact, in all litigation to which s 7A applied. The context here, as well as in ss 12 and 23, makes it plain that "the court" denoted the judge; cf s 30(3) of the 2005 Act and the point made in [189] above.

[33]

References to the "general law" in the Defamation Act

Section 6(1) of the current Act provides that "This Act relates to the tort of defamation at general law." "General law" is defined in s 4 to mean "the common law and equity". Read together, it is clear that defamation is regarded as a tort, to which remedies at common law and in equity may be available. For the purposes of the modern legislation, one puts to one side the more ancient historical truth, with which Lord Sumption commenced his judgment in Lachaux v Independent Print Ltd [2019] UKSC 27 at [4], that while slander emerged from the common law action on the case, libel "originated in the disciplinary jurisdiction of the ecclesiastical courts and the criminal jurisdiction of the Court of Star Chamber". See also D Rolph, "The Sources of Defamation Law" in Gleeson, Watson & Peden (eds), Historical Foundations of Australian Law: Vol II (The Federation Press, 2013) 106.
So much is clear. But the more intractable difficulty presented by the definition of "general law" arises from the further provision made in s 6(2) and (3), which provide: "(2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication). (3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted: (a) the Defamation Act 1958, (b) the Defamation Act 1974."
Those subsections are simply worded. I shall attempt to explain why I regard them as highly problematic in practice, at least in their application to the element of reasonableness in the defence created by s 30. It is not the first time s 6 has caused problems. Its obscurity, in connection with s 24, was addressed by Basten JA, with whom Macfarlan JA agreed, in Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154 at [136]-[144], and, in connection with ss 25 and 26, by Basten JA in TCN Channel Nine Pty Ltd v Pahuja [2019] NSWCA 166, especially at [43]-[47].

[34]

Matters "traditionally reserved" for the judge?

The term "general law" as defined in ss 4 and 6 is only used in a handful of places in the statute: ss 7, 22, 24, 31 and the savings and transitional provisions. There is no reason to doubt that when the term "general law" is used in s 22(5)(b) by reference to whether an obligation was imposed upon the judicial officer to determine an issue, the stricture in s 6(3) applies. It follows that although, prior to 2005, New South Wales legislation spoke directly to the determination of issues of public interest to which the primary judge referred, those provisions are to be disregarded for the purpose of determining whether there was an obligation upon the judge to decide an issue such as to engage s 22(5)(b). That is a counterintuitive result, but as presently advised, I see no other way of construing s 6(3) read with s 22(5)(b).
It is as well to spell out some of the consequences. Seemingly the disregard of the Defamation Act 1974 required by s 6(3)(b) when understanding a reference to the "general law" is a disregard of that statute as amended from time to time. Accordingly, in order to apply s 22(5)(b) it is necessary: 1. to put to one side the first twenty years operation of the 1974 Act, when matters of public interest and any defence of qualified privilege were by dint of ss 12 and 23 reserved for the determination by the judge although disputed primary facts relevant to a defence of qualified privilege were for the jury, and 2. to put to one side the following decade from 1995 to 2005 when in New South Wales (and so far as I am aware, only in New South Wales) by reason of s 7A every issue relating to a defence was determined by the judge.
It is also necessary, by reason of s 6(3)(a), to put to one side s 19 of the Defamation Act 1958 (NSW), which made the issue of "public benefit" one for the jury, but which probably left undisturbed the position established under the 1912 Act that issues of "public interest" were for the judge.
Enough has been said to indicate that a statement that something was "traditionally" reserved for the determination by the judge is, without more, unhelpful for the purpose of s 22(5)(b). Indeed, it may positively mislead, unless it is clear that some decades of actual practice of the courts was being disregarded. One reason the approach required by s 6(3) is counterintuitive is that ordinarily the content of common law "is evidenced by judicial reasons for decision": Western Australia v The Commonwealth (1995) 183 CLR 373 at 485; [1995] HCA 47. But s 6(3) requires that a different approach be taken to identify the "general law". The question posed by s 22(5)(b) requires one to disregard the 1974 Act which spoke directly to public interest, either expressly by dint of s 12 (from 1974 until 1995) or more broadly by leaving all aspects of all defences to the judge by dint of s 7A (from 1995 until 2005). Throughout that time, judges determined issues of public interest, but that occurred by reason of legislative provisions which must, in order to apply s 22(5)(b), be disregarded. Happily, one can also pass over whether s 19 of the 1958 statute achieved the opposite effect, because it too is to be disregarded. That said, there is a body of earlier authority supportive of the proposition that what is now known as "public interest" was a matter for the judge.
It is difficult to identify the legislative purpose underlying s 6(3). It is apt to produce error, because it profoundly and unexpectedly alters the operation of important provisions which refer to "general law". Neither party's submissions (whether to the primary judge or in this Court) addressed the meaning of "general law" in s 22(5)(b) at all. There is no reference to the definition of "general law" or the operation of s 6(3) in the reasons of the primary judge.

[35]

Herald and Weekly Times Ltd v Popovic

The primary judge and the respondents relied upon the decision of the Victorian Court of Appeal in Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161. The discussion of reasonableness in Popovic concerned the so-called Lange defence of qualified privilege, and the litigation predated the uniform 2005 legislation. However, Mr Gayle submitted, first, that "the reasoning in relation to the Lange defence is both persuasive and does not appear relevantly distinguishable from the principles underlying s 30". Secondly, he submitted that "it would be incongruous and inconvenient if the issue of 'reasonableness of publication' were to be determined by different tribunals in the same case". Mr Gayle added: "In those circumstances, while Popovic was not binding on her Honour, the principles in Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135] are still applicable, because to depart from it (unless convinced that it was plainly wrong) would be [to] open up significant inconsistency in the principles which would apply in defamation cases."
Dr Collins submitted that Popovic was "plainly wrong", insofar as it treated Lange as speaking to the issue of which tribunal determined reasonableness.
The leading judgment in Popovic was delivered by Gillard AJA. His Honour addressed the question as to who was to determine reasonableness at [104]-[118]. His Honour started with the proposition that "The law in this area has always been that the question whether a qualified privilege defence was established is a question of law for the trial judge to determine - see Stace v Griffith (1869) LR 2 PC 420 at 428." His Honour said that if any of the circumstances relevant to the determination of that question were in dispute, the disputed questions of fact were to be decided by the jury, and cited a deal of English authority in support of those propositions. In particular, his Honour referred to Lord Esher's judgment in Hebditch v MacIlwaine [1894] 2 QB 54 at 58: "It is for the defendant to prove that the occasion was privileged. If the defendant does so, the burden of shewing actual malice is cast upon the plaintiff but, unless the defendant does so, the plaintiff is not called upon to prove actual malice. The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury, but, when the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion."
His Honour then stated that there was "no doubt that the principles stated by Lord Esher MR constitute the law in this country": at [110]. His Honour cited two academic works for that proposition: M Gillooly, The Law of Defamation in Australia and New Zealand (The Federation Press, 1998), p 218 and T Tobin & M Sexton, Australian Defamation Law and Practice (LexisNexis Butterworths) at p 9083.
The statement that what Lord Esher MR said in 1894 as to the roles of judge and jury constituted the law in Australia is, with respect, not sustained by at least one of those works. And it may also be unclear what was meant by "the law in this country". It was certainly not the law in New South Wales in 2002 and 2003, when the trial and appeal in Popovic were heard, because s 7A of the Defamation Act 1974 reserved "all issues of fact and law" going to the defence to the judge and not the jury. It was certainly not the law in South Australia, where civil juries had been abolished decades earlier by the Juries Act 1927 (SA), s 5. It was not the law in the Australian Capital Territory, following a recent amendment to s 22 of the Supreme Court Act 1933 (ACT) abolishing juries.
One of the works cited was a looseleaf service, and I have not been able to obtain p 9083 in the form it took in 2003. However, Mr Gillooly's 1998 work is readily available. Page 218 (the page cited by Gillard AJA) provides a concise snapshot of the four different regimes in Australia applicable at that time: (a) juries abolished in South Australia, (b) juries excluded from all aspects of defences by reason of s 7A in New South Wales, and then the slightly different regimes in (c) Queensland and Tasmania and (d) other Australian jurisdictions and New Zealand. The position is one of variety, not uniformity.
Gillard AJA applied those principles allocating the responsibility of decision making to the element of reasonableness in the Lange defence. He gave the following reasons at [112]: "• The defence is a common law defence extending the qualified privilege category of privileged occasions to publication by the media to members of the Australian community concerning government or political matters. • The High Court did not specifically address the question, nor did it state that the defence or part of it, was one of fact for the tribunal of fact. This must be compared with the former defence established in Theophanous v Herald & Weekly Times Ltd, supra, where the majority stated that whether a publisher had acted reasonably 'must be a question of fact in every case'. • The Court did say it was a matter for the judge to consider. It said - 'Reasonableness of conduct is an element for the judge to consider only when the publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.'"
Dr Collins submitted that this third bullet point was "plainly wrong" if it was regarded as authority for the proposition that the judge rather than the jury determined reasonableness: "We submit that passage is plainly wrong. The Lange case was a case brought in New South Wales at a time when s 7A of the 1974 Defamation Act was in force. The effect of s 7A was that all matters of defences were for the judge alone exclusively. It is therefore not surprising in a judgment before the High Court considering an appeal from the Courts of this State, at a time when s 7A was in force, that the Court would say reasonableness is an element for the judge to consider only when the publication and so on. That was simply a consequence of the operation of s 7A of the former Act."
I do not agree with Dr Collins' submission. That said, I would not accept that the statement in Lange is authoritative for any proposition as to the allocation between judge and jury of aspects of a defence. And, contrary to Mr Gayle's submission, I do not agree that Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 has anything to do with what is to be made of Popovic. In order to explain those three separate points, it is necessary to consider Lange in some detail and in context, including s 22 of the 1974 Act.

[36]

The creation of the Lange defence and the references to reasonableness

Lange was not an appeal. Lange was a pending defamation action commenced in the Supreme Court of New South Wales which was removed, pursuant to s 40 of the Judiciary Act 1903 (Cth), to the High Court. A case was stated by Mason CJ pursuant to s 18 of the Judiciary Act. True it is that when Lange was determined in 1997, s 7A of the Defamation Act 1974, uniquely in Australia, confined the jury's role to determining only whether an imputation was made out. But s 7A did not apply to Mr Lange's proceeding.
Section 7A was inserted in 1995 by the Defamation (Amendment) Act 1994, with effect from 1 January 1995. The broadcast which led to Mr Lange's Australian defamation action was made on 30 April 1989: see 189 CLR at 521. It would be natural to regard s 7A as a procedural provision prescribing "the manner in which the trial of a past [cause of action] is to be conducted", and would apply (cf Rodway v The Queen (1990) 169 CLR 515 at 518; [1990] HCA 19), and thus applicable to Mr Lange's pending proceeding. However, the savings and transitional provisions made it clear that none of the amendments applied to causes of action which had already accrued: see cl 3(1) of Schedule 3 inserted by the 1994 Act ("An amendment made by the amending Act applies only to causes of action that accrue after the commencement of the amendment.")
In order to understand the reasoning in Lange it is necessary to mention s 22 of the 1974 Act, which was one of the heads of qualified privilege created by statute, and which at all material times provided: "22 Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances. there is a defence of qualified privilege for that publication. (2) For the purposes of subsection (1), a person has an apparent interest in having information on some subject if, but only if, at the time of the publication in question, the publisher believes on reasonable grounds that that person has that interest. (3) Where matter is published for reward in circumstances in which there would be a qualified privilege under subsection (1) for the publication if it were not for reward, there is a defence of qualified privilege for that publication notwithstanding that it is for reward."
In 1994, the High Court (by bare majority) held that the implied freedom which had been recognised two years earlier in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; [1992] HCA 46 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; [1992] HCA 45 effected an alteration of the common law. In Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; [1994] HCA 46, the Court answered a question reserved by holding that a publication concerning (speaking broadly) political matters would not be actionable under the law relating to defamation if the defendant establishes that (a) it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. Mason CJ, Toohey and Gaudron JJ explicitly stated in Theophanous that they were changing the common law rule. After explaining why the discussion of political matters was an occasion of qualified privilege, their joint judgment concluded (at 140): "Even understood in this light, the common law defence does not conform to the constitutional freedom. As already explained, the freedom requires no more than that the person who publishes defamatory matter in the course of political discussion does not know that it is false, does not publish recklessly, and does not publish unreasonably, in the sense earlier explained."
The "sense earlier explained" in relation to the requirement of reasonableness, is a reference to the following passage at 138: "Whether a publisher has acted reasonably must be a question of fact in every case. It will depend upon the standards and expectations of the community as to whether the allegations needed to be investigated. Reasonableness is a concept with which the law is familiar (18)." Footnote 18 provided: "cf the consideration of reasonableness in relation to s 22 of the Defamation Act 1974 (NSW) in Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 705, 711-712; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 796, 797-798; Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 at 360."
The decision of the Privy Council in Austin v Mirror Newspapers Ltd was a decision based on s 22 and proceeded explicitly on the basis that it was for the judge to determine reasonableness. So too did Wright v Australian Broadcasting Commission. Reynolds JA, with whom Glass JA agreed, referred at 711-712 (in a passage cited by the Court in Morosi v Mirror Newspapers at 796) to "the inquiry to be made by the judge in order to determine whether the defendant has satisfied him that it was reasonable of him to defame the plaintiff in the way he did".
It is convenient to pause to note what may usefully be derived, and what does not follow, from footnote 18 of Theophanous and the authorities there cited. 1. First, the fact was that judges determined the question of reasonableness posed by the s 22 defence. However, in the decisions cited in footnote 18, that approach accorded with s 23 (which had not then been repealed). By reason of s 6(3)(b) of the 2005 Act, s 23 must be put to one side. Those authorities do not speak to the question whether there was an obligation at general law for the issue of reasonableness to be determined by the Court. 2. Secondly, it will be noted that the footnote commences with a "cf", which is apt in the present context to indicate a contrast. The body of the judgment strongly suggests that the question was regarded as one for a jury: it was a "question of fact", which depended "upon the standards and expectations of the community". Further, Theophanous concerned a pending trial in the County Court of Victoria. So far as I can see, there was no Victorian counterpart of s 23 of the Defamation Act 1974 (NSW).
Drawing all of those matters together, I read the joint judgment in Theophanous as holding that it was a question for the jury to determine whether the publisher had acted reasonably. I respectfully agree with the second subparagraph within [112] of Gillard AJA's judgment in Popovic.
Returning to Lange, Deane J did not agree that there was a requirement of reasonableness: "I am quite unable to accept that the freedom which the constitutional implication protects is, at least in relation to statements about the official conduct or consequent suitability for office of holders of high government office, conditioned upon the ability of the citizen or other publisher to satisfy a court of matters such as absence of recklessness or reasonableness": at 188.
However, the broader defence which his Honour regarded as flowing from the Constitution necessarily comprehended that qualified by a requirement of reasonableness as pronounced in the judgment of Mason CJ, Toohey and Gaudron JJ, and it was on that basis that the questions reserved for determination by the Full Court were answered. Putting the matter somewhat simplistically (because nothing turns on it for present purposes), Brennan, Dawson and McHugh JJ each considered that the Constitution did not give rise to any personal defence.
The judgments in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; [1994] HCA 45, which had been heard at the same time and were delivered on the same day did not take the matter any further, relevant for present purposes.
Three years later, Lange extended the existing common law defence of qualified privilege. It did so by reference to the conventional requirement of reciprocity of interest and duty. The joint judgment said at 571: "Accordingly, this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it."
The same paragraph referred to "the common law defence as so extended" and "the extended defence of qualified privilege".
At the same time, the High Court imposed a further restriction upon the extended defence, namely, one of reasonableness. That qualification, which had been present in the reasons of Mason CJ, Toohey and Gaudron JJ (but not Deane J) in Theophanous, applied only to the new, extended aspect of the defence. It was this which was the subject of the critical passage in Lange which warrants reproducing extensively: "Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege." [emphasis added, citations omitted]
The references to the "extended category of qualified privilege" are to the "extension" effected by the decision over and above the existing category of qualified privilege. I see no reason to think that the Court was attempting to express any view as to whether the judge as opposed to a jury would determine that issue. Rather, the Court was making a point as to substance, namely, that reasonableness was an element only of the extended defence formulated in Lange itself, and had no role where the existing common law defence of qualified privilege did not apply. I respectfully disagree with the force apparently attributed to those words by Gillard AJA in the third subparagraph of [112].
Contrary to the newspapers' submission, I think it matters not whether the High Court in fact had in mind that s 7A did not apply, or else had overlooked that matter, when the passage relied on by Gillard AJA was written. The reason is that no issue was presented in Lange as to whether the judge or the jury would determine the defence. In fact, the defence was to operate as part of the "common law of Australia" and would be determined differently in different jurisdictions (in Victoria, primary facts would be determined by the jury, while in South Australia, everything would be determined by a judge). Judgments are authority for what they decide, and every judgment is to be read in context. As Lord Porter said in Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 637-638: "These words must (as must every word of every judgment) be read secundum subjectam materiam. They were appropriate to their context and must be read in their context."
Mr Gayle's submission was that the deference associated with Farah Constructions Pty Ltd v Say-Dee Pty Ltd attached to what was said in Popovic. I do not agree that is so, although I am prepared to proceed on the basis, favourable to Mr Gayle, that reasonableness under Lange is the same as reasonableness as required by s 30(1)(c). 1. First, the question raised by ground 5 of the newspapers' appeals is as to the construction of s 22(5)(b) of legislation which had not been enacted when Popovic was determined. 2. Secondly, the Court in Popovic very properly pointed out that this part of its analysis was not the subject of any ground of appeal and was accordingly obiter (and quite probably not fully argued). 3. Thirdly, insofar as Popovic expressed views as to what was and was not held in Lange it does not attract the deference stated in Farah Constructions. The binding force of Lange upon this Court is unaffected by what was said of that decision by another intermediate appellate court, although, naturally, regard will be had to that other court's reasons as a matter of comity: Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266 at [97]-[101]; Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421; [2016] FCAFC 186 at [149]; Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546; [2016] VSCA 237 at [132]-[133].
Returning to the judgments in Popovic, Gillard AJA added at [113]: "Of course the trial judge, in drawing inferences from the facts, will be indulging in a fact finding exercise. • The element of reasonableness is based upon s 22 of the Defamation Act 1974 (NSW). By reason of s 23, whether the defence has been established is one for the judge and not the jury. One of the matters that the judge would have to consider is whether the conduct of the publisher was reasonable in the circumstances. See s 22(1)(c)."
One aspect of this is incorrect. Section 23 had been repealed in 1994, and replaced by s 7A. However, its substance is correct.
His Honour addressed the then recent decision of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, and in particular referred to Lord Nicholls' statement that disputes of primary fact will be a matter for the jury, but "[t]he decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound." Shortly after Reynolds, with effect from 17 February 2003, the Defamation Amendment Act 2002 (NSW) inserted s 22(2A) identifying eight matters resembling those stated in Reynolds as matters which the court might take into account in determining reasonableness; this is the immediate ancestor of the ten matters now found in s 30(3).
Gillard AJA then returned to New South Wales law at [116]: "In my opinion, the cases in New South Wales concerning the question of the reasonableness of publication provide a guide to matters which are relevant to the question but one should be careful not to raise these relevant matters to principles of law. The defendant must prove that the publication was reasonable in the circumstances. That is the element of proof. That, in my view, is a question for the trial judge."
I respectfully agree that his Honour was correct to express reserve in treating them as authoritative of the position in Victoria. At least since 1958, New South Wales legislation had made express provision for the determination by juries and judges of defences to actions for defamation, and the divergent approaches throughout that period could not be any safe guide to the law in Victoria. Windeyer J's salutatory statement in Australian Consolidated Press Ltd v Uren at 204 (coincidentally, also made in a case turning on qualified privilege) is apt: "But it is necessary to remember always that in New South Wales (as elsewhere in Australia except in Victoria and South Australia) much of the law of defamation has been codified."
Gillard AJA reiterated at [117] that disputed facts going to reasonableness would be resolved by the jury but stated at [118] that whether the publication was reasonable in the circumstances was not for that purpose a "disputed fact".
Gillard AJA also acknowledged, in the interests of transparency, that the issue which he had addressed as some length was not the subject of any ground of appeal, and arose only because of an inquiry by the Court when the appeal was heard: at [121].
Winneke ACJ agreed with Gillard AJA's conclusions, and gave short reasons. His Honour like Gillard AJA relied on the statement by the High Court in Lange that reasonableness of conduct was "an element for the judge to consider" which has been addressed above. His Honour also said at [12] that reasonableness of the publisher's conduct "both defines and confines the scope of the privilege". I respectfully agree, but do not regard that statement as illuminating whether that question of fact is to be determined by judge or jury. Winneke ACJ also relied upon a statement by the Privy Council in Austin v Mirror Newspapers Ltd [1986] AC 299 at 317, which proceeded on the basis that where a defence of comment has failed, "a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them". But by reason of s 23 of the Defamation Act 1974 (NSW), the issue of qualified privilege was for the judge, and there was no issue in Austin v Mirror Newspapers as to the roles of judge and jury, and so Lord Griffiths' statement does not speak to the question.
The third member of the Court of Appeal, Warren AJA, relevantly agreed with Gillard AJA.

[37]

Conclusion on ground 5

For the reasons I have given, I do not see why the decisions in New South Wales, where judges determined reasonableness under the defence created by s 22 of the 1974 statute, in accordance with either s 23 or s 7A, speak to whether reasonableness under the extended Lange defence is a matter for the judge or the jury. So far as I can see, that is part of the basis for the conclusion in Popovic that reasonableness is for the judge. To that extent, I do not regard Popovic as supporting the conclusion reached by the primary judge.
Indeed, if the element of reasonableness in the Lange defence is the same as the element which attracted the support of a majority of the High Court in Theophanous, then there is no reason to think that that element of the defence shifted from a matter for the jury to a matter for the judge. (Of course, whether that was so would also depend on local procedural law. One point of Lange is that the defence is an extension of the defence at common law, and therefore subject to local procedural statutes regulating how a defamation action was to be tried.)
If that analysis is right, then nothing that was said in Lange provides a sound foundation for identifying what is critical for the purposes of s 22(5)(b), namely, a requirement at general law for the issue of reasonableness to be determined by a judge. Indeed, it is to the contrary. To that extent also, Popovic does not support the conclusion reached by the primary judge.
Almost the entirety of the analysis set out above concerning s 22(5)(b) and what was said in Lange was unmentioned in the parties' submissions. At least for that reason, there may be matters which I have overlooked. However, as presently advised, it seems to me that the reliance placed by the primary judge on what was "traditionally" left to the judge and what had been said in Popovic did not without more warrant the conclusion her Honour reached.
I respectfully agree with her Honour that the question is outstandingly difficult. The principal source of the difficulty is the definition of "general law". As presently advised, the analysis in New South Wales will include the following propositions: 1. The question is whether there can be identified an obligation arising "at general law" whereby the judge must determine the issue of reasonableness in a defence to an action for defamation. 2. In accordance with s 6(3), in answering that question, the entirety of the 1958 and 1974 statutes (including amendments) must be disregarded. In particular, since all questions relating to a defence were matters for the judge from 1995 (by reason of s 7A), nothing may safely be taken from the actual decisions of New South Wales courts when s 7A was applicable. 3. Subsection 22(5)(b) requires identifying an obligation at general law to determine an issue. Subsection 22(5)(b) can only apply to an issue arising under a defence based on s 30 if substantially the same issue arose in some defence at general law. 4. Whether a publication was in the public interest has long been regarded as a question for the judge. That was so not merely by reason of the express language of s 12 of the 1974 Act, but by a series of earlier decisions. It reflects the fact that "important considerations of public and social policy [are] traditionally refined and determined by the judge": Calwell v Ipec Australia Ltd at 329. Insofar as public interest is a matter which contributes to the defence of reasonableness in s 30(1)(c), by reason of s 30(3)(a) and (e), that is an issue for the judge by reason of s 22(5)(b). 5. It does not follow that the whole of the issue of reasonableness is a matter for the judge as opposed to the jury. As presently advised, I see no difficulty in principle with a regime where the reasonableness of the publication is left to the jury, coupled with a direction that in determining whether the publisher had been reasonable, the jury was to proceed on the basis that there was or was not any public interest in the issue. 6. Reasonableness had been an element of the s 22 defence under the 1974 Act, which was a statutory extension of qualified privilege at common law. But no assistance is derived from that for the purposes of s 22(5)(b) of the current Act, because the 1974 Act is to be disregarded in determining the position at general law. Reasonableness had also been an element of the qualified privilege given by s 17(e) of the Defamation Act 1958 (NSW), which derived from s 377(5) of the Criminal Code (Qld) (the latter is reproduced in Bedford at 650) but once again s 17(e) must be disregarded for the purposes of s 22(5)(b). 7. As presently advised, general law did not (save for one minor qualification) recognise a defence which was based upon "reasonableness", except insofar as reasonableness was an element of the defence first recognised in Theophanous and reformulated in Lange. The qualification is a short-lived attempt by Sir Alexander Cockburn to narrow the defence of fair comment by reference to reasonableness in the 1860s, which did not survive Merivale v Carson (1887) 20 QBD 275, as explained by Professor Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005), pp 180-181. Even if that superseded notion at general law were relevant, it is clear from Cockburn CJ's summing up that reasonableness was a question for the jury: see Hunter v Sharpe (1866) 4 F & F 983 at 1005; 176 ER 875 at 885 and Risk Allah Bey v Whitehurst (1868) 18 LT(NS) 615 at 620. 8. For the reasons I have given, and contrary to what was said in Popovic, I would not conclude that there was a requirement at general law for the element of reasonableness in that defence to be determined by the judge as opposed to by a jury. To the contrary, Theophanous held that reasonableness was for the jury, and Lange did not alter that result.
That analysis would tend to suggest that the earlier conclusion reached by the primary judge in Daniels was correct, and that reasonableness under s 30(1)(c) should be determined by the jury.
That conclusion is reinforced by the consideration mentioned by the primary judge, that it would be unlikely for the exception created by s 22(5)(b) to swallow up the whole of the rule established by s 22(2). Further, the legislative purpose of s 22 is to preserve and indeed enhance the role of juries in defamation actions; that purpose is not advanced by a construction which leaves the entirety of the element of reasonableness - which might be thought to be a quintessentially jury point - to the judge.
There are three further issues which I briefly mention. First, I am conscious of a debate at the academic level whether reasonableness for the purpose of Lange is the same as reasonableness for the purposes of s 22 and s 30: see especially K Gould, "The more things change, the more they stay the same ... or do they?" (2007) 12 Media and Arts Law Review 29 at 35-40. Indeed, ss 22 and 30 are themselves (slightly) differently worded. However, the question is one of construction of s 22(5)(b), and it seems unlikely that that provision would distinguish the issue of "reasonableness" at this level. But even if the issues be different, it would seem not to alter the result of applying s 22(5)(b). To reiterate, only if and to the extent that there is a requirement at general law that reasonableness be determined by a judge is the effect of s 22(2) displaced.
Secondly, there is reason to think that "general law" excludes not merely the 1958 and 1974 statutes, but all statutes. That follows in part from the exhaustive definition that "general law means the common law and equity", and the fact that s 6(3) is expressed to be without limitation to s 6(2). It also tends to be confirmed by s 7(1) which provides that "The distinction at general law between slander and libel is abolished." That distinction is ancient, but so too are the statutes which have been enacted to abolish it. Famously, the abolition was proposed by Lord Campbell, whose bill was rejected in England, but which was enacted locally by the Libel Act 1847 (NSW) (11 Vic No 13), which was preserved by s 3 of the (consolidating) Defamation Act 1901 (NSW) and s 4 of the Defamation Act 1912 (NSW): see P Mitchell, "The Foundations of Australian Defamation Law" (2006) 28 Sydney Law Review 477. As presently advised, I do not see that a further consideration of s 6(2) will alter the analysis relevantly to ground 5.
Thirdly, there are to my mind very large difficulties in the separation of statute on the one hand, and "common law and equity" on the other, on which s 6 and the definition of "general law" appear to proceed. As these reasons may suggest to any reader, it is very often difficult to distinguish the two. Professor Fleming once described the law of defamation as "a mosaic of statute and common law", in a passage cited by Deane J in Theophanous at 174, but in fact that metaphor may not do justice to the complexity of the interaction. Speaking of vicarious liability, Joachim Dietrich and Iain Field have recently referred to the "nuanced story of a complex interaction between statute and common law": "Statute and Theories of Vicarious Liability" (2019) Melbourne University Law Review (forthcoming). I have written elsewhere to the same effect, as have others: see P Vines and S Donald, Statutory Interpretation in Private Law (The Federation Press, 2019). The interrelationship of judge-made law and statute is no recent discovery. Windeyer J said half a century ago that "it is misleading to speak glibly of the common law in order to compare and contrast it with a statute": Gammage v The Queen (1969) 122 CLR 444 at 462; [1969] HCA 68. But the reference to "general law" appears to require the analysis to proceed on that basis. Ultimately, that problematic premise to the 2005 statute is what gives rise to the most difficult problems in its application.
These are not merely academic problems. Take something basic to this area, and directed to a similar issue to that underlying ground 5 of these appeals. The allocation of responsibility between judge and jury has been the subject of legislative attention since no later than Charles James Fox's Libel Act of 1792 (32 Geo III c 60). That Act expanded the powers of juries in criminal trials, but was said by Baron Parke (it must be said, somewhat implausibly) to have been a declaratory act, equally applicable to civil actions: Parmiter v Coupland (1840) 6 M & W 105 at 108; 151 ER 340 at 342. Was that a statement about general law or statute? "Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship": Brodie v Singleton Shire Council (2001) 206 CLR 512; [2001] HCA 29 at [31].
If the outcome of ground 5 were to make a difference to any of the court's orders, I would not reach a final conclusion without giving the parties an opportunity to be heard on matters not addressed in their submissions. But in circumstances where they make no difference to the outcome, I see no reason to tax the parties with them. Why should the parties pay for further submissions on an issue which cannot affect the ultimate outcome? It is better that the issue be determined in a judgment where something turns on it and where it has been the subject of full submissions, in accordance with what (for example) Bell P and Emmett AJA recently said in Newling v Metlife Insurance Ltd [2019] NSWCA 149 at [2] and [73]. It may be hoped that the preceding paragraphs, although obiter, may assist when and if the issue arises in litigation where it matters.

[39]

Annexure "A"

Particulars of reasonableness in the newspapers' defences: "(a) the matters complained of related to the Subjects, which were subjects of proper and legitimate public interest; (b) the defendant took care to distinguish between allegations, suspicions and proven facts; (c) it was in the public interest in the circumstances for the matters complained of to be published expeditiously; (d) the defendant is engaged in the business of providing information to the public, and published the matters complained of in the ordinary and legitimate course of that business; (e) the defendant was reasonably satisfied about the integrity of the sources of the information in the matters complained of and the authenticity and accuracy of the information provided by those sources; (f) the defendant was reasonably satisfied as to the fairness of the language and the manner in which the matters complained of were composed; (g) prior to publication of the matters complained of, the defendant contacted the plaintiff, through his manager Simon Auteri, and informed him of Person A's allegations and provided him with an opportunity to respond; (h) the defendant fairly and accurately reported Simon Auteri's response, which was to decline to comment; (i) the defendant fairly and accurately reported the plaintiff's denial of Person A's allegations (which was given after the publication of the first and second matters complained of) in the third, fourth, sixth and seventh matters complained of; (j) prior to publication of the eighth and ninth matters complained of, the defendant contacted the plaintiff, through his manager Simon Auteri, and informed him that the defendant had obtained a copy of an email sent by Richard Richardson to all West Indies players on or about 12 February 2015, and provided him with an opportunity to respond; (k) the defendant fairly and accurately reported Simon Auteri's response, which was to decline to comment; (l) prior to publication of the first and second matters complained of the defendant took steps to verify the information in the first and second matters complained of, namely: (i) the defendant, through its agent Chloe Saltau, spoke to and obtained information from Person A, and fairly and accurately set out the information provided by Person A in the matters complained of; (ii) the defendant, through its agent Chris Barrett, made enquiries of Richard Richardson, the operations manager of the West Indies cricket team at the World Cup, and fairly and accurately set out the result of those enquiries in the first and second matters complained of; and (iii) the defendant, through its agent Chloe Saltau, made enquiries of Stuart Coventry, the Chief Executive of the Melbourne Renegades, the Big Bash team that the plaintiff was playing for at the time of publication of the matters complained of, and fairly and accurately set out the result of those enquiries in the first, second, third, fourth and fifth matters complained of; (m) in addition to the matters set out in (l) above, prior to the publication of the third and fourth matters complained of, the defendant took steps to verify the information in the third and fourth matters complained of, namely: (i) the defendant, through its agent Chris Barrett, made enquiries of David Richardson, the Chief Executive of the International Cricket Council, and fairly and accurately set out the result of those enquiries in the third, fourth and seventh matters complained of; (ii) the defendant, through its agent Chris Barrett, made enquiries of Sami Ul-Hasan, the Communications Manager of the International Cricket Council, and fairly and accurately set out the result of those enquiries in the third and fourth matters complained of; (iii) the defendant, through its agent Chris Barrett, made enquiries of a number of confidential sources, and fairly and accurately set out the result of those enquiries in the third and fourth matters complained of; (iv) the defendant, through its agent Chris Barrett, made enquiries of Carole Beckford, the Communications Manager of the West Indies Cricket Board, and fairly and accurately set out the result of those enquiries in the third and fourth matters complained of; and (v) the defendant, through its agent Chris Barrett, made enquiries of Tony Dodemaide, the Chief Executive of Cricket Victoria and fairly and accurately set out the result of those enquiries in the fourth and fifth matters complained of; (n) in addition to the matters set out in (l) and (m) above, prior to the publication of the fifth matter complained of, the defendant took steps to verify the information in the fifth matter complained of, namely; (i) the defendant, through its agent Matt Murnane, made enquiries of Stuart Coventry, the Chief Executive of the Melbourne Renegades, the Big Bash team that the plaintiff was playing for at the time of publication of the matters complained of, and fairly and accurately set out the result of those enquiries in the fifth matter complained of; and (ii) the defendant, through its agent, listened to a radio interview with Jim Maxwell on 774 ABC, and fairly and accurately set out quotes from Mr Maxwell in the fifth matter complained of; (o) in addition to the matters set out in (l), (m) and (n) above, prior to the publication of the sixth and seventh matters complained of, the defendant took steps to verify the information in the sixth and seventh matters complained of, namely: (i) the defendant obtained a copy of a statement released on behalf of the plaintiff, and fairly and accurately set out the substance of that statement in the sixth and seventh matters complained of; and (p) in addition to the matters set out in (l), (m), (n) and (o) above, prior to the publication of the eighth and ninth matters complained of, the defendant took steps to verify the information in the eighth and ninth matters complained of, namely: (i) the defendant obtained a copy of an email sent by Richard Richardson to all West Indies players on or about 12 February 2015, and fairly and accurately set out the substance of that email in the eighth and ninth matters complained of; and (ii) the defendant, through its agent Tom Decent, made enquiries of Stuart Coventry, the Chief Executive of the Melbourne Renegades, the Big Bash team that the plaintiff was playing for at the time of publication of the matters complained of, and fairly and accurately set out the result of those enquiries in the eighth and ninth matters complained of."

[40]

Amendments 16 July 2019 - [129]: First sentence, "newspapers'" changed to "newspapers". [176]: Fourth sentence, "the" added before "jury"; "be" deleted before "no good". [191]: Second sentence, "not" deleted before "to be". [196]: Fourth sentence, "in" deleted before "Division 2". [209]: First sentence, "traditional" changed to "transitional"; second sentence, "than" changed to "that", "is" added before "used". [238]: Final sentence, remove MNC. [254]:"been" deleted before "determined". 16 July 2019 - [5]: Second sentence, "equivalent" changed to "equivalence". 23 April 2020 - Coversheet - in Representation field, "L Barnett" replaced by "M Lewis". [15] - In third line of quotation, full stop inserted after "towel". [17] - In c(i) "Complained of" replaced by "Complained Of". [52] - In penultimate line of first quoted paragraph "[on]" inserted before "antidepressants" . [78] - In first line of quoted text, "[to]" inserted before "be saying". [127] - "given an explanation" replaced by "give an explanation". [137] - "ss 56 to 58" replaced by "ss 56-58". [138] - In quoted text, "dischage" replaced by "discharge". [140] - "Whelan AJA" replaced by "Whelan JA". [160] - Closing bracket after "$550,000" moved after "$300,000". [165] - In quoted text, "the damages" replaced by "then damages". [195] - "it" before "in order to" deleted. [216] - In last line of quotation"constituted" replaced by "constitute". [225] - In s 22(1)(c) "defendant" replaced by "publisher"; In s 22(2) "the recipient" replaced by "that person". [228] - At end of quotation"that" deleted before "he did". [234] - Italicisation of "extended" removed. [242] - Date of commencement changed from "14 February 2003" to "17 February 2003". [247] - Quotation from Austin v Mirror Newspapers Ltd [1986] AC 299 changed from "a judge should examine the circumstances very closely before concluding that it was reasonable to publish" to "a judge should examine the circumstances leading up to the publication of those false facts very closely before concluding that it was reasonable to publish them". [259] - "Sir" deleted. Annexure A 263(i) - "enquires" replaced by "enquiries". 14 August 2020 - [142] "senior counsels' statements" changed to "senior counsel's statements". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2020